Chrisis v Commissioner of Police
[2013] NSWADT 142
•18 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Chrisis v Commissioner of Police [2013] NSWADT 142 Hearing dates: 3 May 2013 Decision date: 18 June 2013 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed
Legislation Cited: Sections 3, 4C, 7, 7A, 11, 24, Firearms Act 1996; clauses 19, Firearms Regulation 2006 Cases Cited: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27
Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 (18 April 2013); New South Wales Police [2007] NSWADT 27
Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276;Category: Principal judgment Parties: Konstantinos Chrisis (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: K Chrisis (Applicant in person)
Sparke Helmore Lawyers, (Respondent)
File Number(s): 123353
REASONS FOR DECISION
Background
This was an application by Mr Chrisis, the applicant, for review of a decision of the Commissioner of Police, the respondent, to revoke the applicant's firearms licence. The applicant was issued with a Category ABH firearms licence on 23 February 2012, to expire 18 April 2017. That licence was suspended on 3 May 2012 and revoked on 8 September 2012. On internal review, on 14 November 2012, the decision was affirmed. On 10 December 2012 the applicant applied to the tribunal for review of this decision.
The history of the applicant's firearms licence is as follows. The applicant was first issued with a Category AB firearms licence on 31 March 2000, for the genuine reason of recreational hunting/vermin control. On 17 May 2002 the Category H was added to that licence (genuine reason target shooting and employment as a security guard). The genuine reason of employment was removed from his Category H license on 23 December 2004. In accordance with legislative obligations, on 11 April 2002, the applicant reported to police that his only registered firearm had been stolen during a break and enter in which his firearms safe was prised open.
The police have twice inspected and approved the applicant's firearms safekeeping provisions, on 26 March 2004 and again on 17 March 2009. On the date of that second inspection the firearms were not present as they were seized on 6 March 2009 due to a domestic violence incident (which was between other people and did not involve the applicant). His firearms licence was suspended because of that dispute but was returned to the applicant on 12 March 2009. The applicant successfully reapplied for his firearms licence and his Category ABH firearms licence was issued from 25 October 2005 for the genuine reasons of Target shooting for Category ABH and recreational hunting/vermin control for category AB. On 4 September 2010 the Firearms Registry automated licensing system automatically generated reapplication papers for the applicant's licence, which were posted to his residential address. On 1 December 2010 the firearms licence expired leaving the applicant in unauthorised possession of two category A firearms and two Category B firearms and one Category H pistol, in contravention of section 7 and 7A of the Firearms Act 1996. On 24 January 2011 police attended the applicant's residence with instructions to seize his firearms and ammunition because he held no current licence or permit for possession. Police found in his storage a quantity of ammunition for firearms/pistols which the applicant was not authorised to possess. Following a record of interview with police, the applicant was charged with several offences relating to firearms and ammunition.
The respondent stated in the internal review decision that a Category H firearms licence does not authorise possession of high-calibre pistols. Pursuant to clause 70 of the Firearms Regulation 2006, possession and use of a pistol with the calibre of more than .38 inches (but not more than .45 inches) that is not otherwise a prohibited pistol, must be authorised by way of a Commissioner's Permit for High Calibre Pistols. The respondent notes the applicant has never been issued with a Commissioner's Permit for High Calibre Pistols. Pursuant to section 65 of the Firearms Act 1996 a person must not purchase or possess any type of ammunition unless they hold a licence or permit for a firearm which takes that ammunition.
On 27 January 2011 the applicant surrendered to Ashfield Police further ammunition for .38 .22 and 12 gauge ammunition, as his licence had expired.
On 31 January 2011 the Firearms Registry received the applicant's application for a Category ABH firearms licence, for an application signed 27 January 2011.
On 13 February 2012 at Burwood Local Court the applicant was found guilty of two offences - possess ammunition without holding licence/permit/authority; and Not surrender firearm to police when licence not in force, however no conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. Five other charges relating to unauthorised possession of the pistol and four firearms were withdrawn by the prosecution on that date.
On 23 February 2012 the applicant was issued with a Category ABH firearms licence for the genuine reasons of Target Shooting for Category ABH and Recreational Hunting/Vermin Control the category AB.
On 3 May 2012 the applicant's Category ABH firearms licence was suspended and the licence was revoked on 8 September 2012.
In the internal review decision the respondent notes that police records contain several reports that the applicant has advised police that he is friends with several members of the Outlaw Motor Cycle Gang, the Hells Angels, but is not a member or an associate of the Club.
The respondent in the internal review decision noted that whilst the applicant had not renewed his firearms licence before it expired, he had contacted the Firearms Registry on 10 January 2011, to request that new applications forms be sent to him. The respondent states that at that time the applicant was advised to store his guns with police, a firearms dealer or another licence holder and notes the applicant's explanation that he says he was advised police would collect his firearms for storage. The respondent considers the provision of this advice by the Firearms Registry unlikely. The respondent considered that the applicant's failure to keep the licence current, and the applicant's poor understanding of his obligations as a licensed firearms holder as demonstrated in his dealings with police and the record of interview, and the applicant's possession of ammunition for firearms which he was not authorised to possess, all indicated that it was not in the public interest for the applicant to hold a firearms licence.
On internal review it was noted by the respondent that the applicant's firearm licence had been granted following the finalisation of the applicant's court matters. However the respondent considers that information available at the time of internal review of the revocation decision, was not readily available to the person who granted the licence application. In this context the respondent placed particular emphasis on the record of interview with police on 24 January 2011, which raised concerns regarding the ability of the applicant to understand the conditions on which a firearms licence was issued, and his willingness to abide by those conditions. Given the absence of demonstrated contrition by the applicant for his actions and behaviour, and the absence of acknowledgement of wrongdoing, and given that he way he dealt with police seemed evasive, the respondent considered that it was not in the public interest, and not in the interests of public safety, for the applicant to be authorised to possess firearms.
The applicant states that the decision maker is wrong in holding that it is not in the public interest for him to hold a firearms licence. He states that his firearms and ammunition were always locked up and secured at all times and his firearms were randomly checked by officers on a regular basis, and there is no evidence it is not in the public interest for him to hold a firearms licence. The applicant gave evidence in support of these matters at the hearing, as detailed below.
The Evidence
The applicant gave oral evidence to the tribunal at the hearing, he also relied on the following documents, a statement which he wrote dated 13 April 2013, a letter from William King, Club Captain, Kemps Creek Pistol Club of 18 March 2013; a reference by his employer, testifying to the applicant being a trustworthy employee. The applicant also provided a copy of a letter from New South Wales Police in relation to his complaint about Police conduct.
The respondent's evidence consisted of the section 58 documents (exhibits R1, R2); a copy of a court attendance notice and Police Facts Sheet and criminal record in respect of a Mr Hersli (exhibit R3, R4) (reported to be a friend/associate of the applicant); copies of colour photographs of ammunition. A DVD recording of an interview between the applicant and police was played during the hearing. Constable Baxter also gave oral evidence to the tribunal at the hearing.
The section 58 documents record the history of the applicant's firearms licence, and revocation of the licence, as detailed above. The brief of evidence for the firearms offences dealt with at Burwood Local Court in 2012 were part of the section 58 documents. Constable Baxter, of State Crime Command, Strike Force Raptor, was the informant in relation to those firearms prosecutions. Constable Baxter gave oral evidence at the hearing about his knowledge, through policing activities, of the activities of Outlaw Motorcycle Gangs. Constable Baxter detailed police observations of the applicant's association with the Hells Angel Outlaw Motorcycle Gang including that on 19 January 2011 the applicant's motor vehicle was seen parked in the driveway of the clubhouse in Petersham. At the time the applicant was observed standing with the vehicle along with three or four other males who were wearing the Hells Angels vests (colours). Shortly after leaving the clubhouse that day the applicant was subjected to a random breath test by police, questioned also about his connection with the Club, and said he was friends with several members, but was not a member or associate of the Club.
The applicant has told police that as he has is employed in a high performance car business, and at different times Outlaw Motorcycle Club members from all different Clubs come to the shop. He is not aligned with any Club. Constable Baxter gave evidence to the tribunal about Police knowledge of the involvement of the Outlaw Motorcycle Gangs in criminal activities. He also said if someone parked their motor vehicle within the clubhouse area, and was not a familiar person to the Club or friend of the Club, they would certainly be asked to leave. Constable Baxter indicated that Strike Force Raptor was a subset of the Gang Squad (Police).
Constable Baxter conducted the police record of interview with the applicant in relation to the firearms offences and noted the applicant's advice that his best friend from school was a member of the Club (Mr Hersli). Constable Baxter noted that this friend has a criminal record including offences of violence and firearms offences - the firearm offences are for the possession of ammunition, not possession of a firearm. Constable Baxter agreed that when he attended the applicant's home in January 2011 the firearms and ammunition were stored in an approved cabinet and were secure. All the firearms were lawfully held previously but the licence had expired in December 2010.
Constable Baxter gave evidence of his experience with firearms. He was in the Army from 1995, in the infantry until 2007 when he left the Army and joined the police. He rose to Corporal and Section Commander in the Army and was qualified to supervise others. He studied firearms and trained people in the use of firearms. He has experience in firearms of several categories. As a policeman he uses a high calibre pistol. Constable Baxter gave considerable technical evidence, based on his expertise, as to how a bullet travelled when fired out of the chamber of the gun, the rifling action, and what happened when a bullet of the wrong size was used in a gun which required a bullet of a different size. This evidence was directed to addressing the applicant's statements in the record of interview that you could use .40 calibre bullets in a .45 calibre pistol. Constable Baxter gave evidence that using the wrong size bullets in the way described by the applicant, in the worst-case scenario, would cause damage to the firearm and the user of the firearm. On some occasions you may get away with using the bullet and firearm in this way but eventually something will break. Shooting and target accuracy is impaired by using the wrong size ammunition, because the rifling action would not occur properly as the bullet was fired from the chamber, and in target shooting in particular this would be a problem. Constable Baxter referred to some photographs which he had obtained from a technical site on the internet demonstrating damage to bullets caused by being used in this way.
Constable Baxter was asked about the reference, by the applicant, in the record of interview, to "Joe" as being a person based at Bowral Pistol Club and Const. Baxter advised that he did make enquiries to ascertain if this person was known to the club, and he could not locate anyone with the name of Joe or a similar name, nor could he locate anyone at the club who knew the applicant by name.
Under cross-examination Const. Baxter was asked whether he considered the applicant to be a member of a motorcycle gang and Const. Baxter indicated he did not, but he did consider the applicant an associate. He was asked whether there was any evidence of the applicant associating with any gang member or at any gang clubhouse in the last two years and Constable Baxter indicated that there had not been a record in the past two years. He agreed also that there were no convictions in the applicant's criminal history relating to activity involving outlaw motorcycle gangs. He further agreed that the applicant's firearms were stored safely and his ammunition was secure.
It was put to Constable Baxter that he had left behind a box of ammunition, when he seized the firearms at the applicant's house, and that the applicant came in to police a day or two later to hand in an ammunition box. Constable Baxter said he did not see any box left behind and he believed that he would have taken all ammunition from the firearm storage facility at the applicant's house to the police station. He did agree that the applicant attended the police station with further ammunition to hand in, but denied that police would have left an ammunition box behind. The applicant stated in his evidence that he found the box containing ammunition in his back yard after police had attended and seized his firearms and ammunition, and the box had been left behind by police so he took it to the police station.
Under cross examination Constable Baxter maintained his evidence that using the wrong size bullets in a firearm was a dangerous act.
The applicant put to Constable Baxter that he had a meeting with police and police agreed that they would not oppose the return of his firearms licence. The applicant put to Constable Baxter that he (the applicant) had agreed to go for a record of interview because he wanted his case on in court as soon as possible and Constable Baxter agreed that the applicant had been concerned to avoid delay.
The applicant gave oral evidence to the tribunal. The applicant stated that he hasn't spoken to his former friend, Mr Hersli, for 2 1/2 years, and now has no association with him, although he continues to see his younger brother. He doesn't go anywhere near Outlaw Motor Cycle Clubs anymore. He says he only has three friends, that's it. Mr Hersli was his best friend since high school, but he doesn't see him anymore because of the troubles. He went to court and it was all over, he received his licence back, and got himself back into his routine. He was very distressed when his licence was subsequently revoked.
The applicant states he does not drink, does not take drugs, his only activity is the sport of firearms. He states he loves the sport and joined a new club recently, the Olympic firearms range, and wants to become more involved in competitive firearm sport. His paid for life membership and insurance.
He has given up his best friend, he has gone to court, he recovered his licence after court, and wishes to continue with the sport. He lives with his parents, his mum is a pensioner, his dad is in the nursing home with a disability. He spent a lot of money on his firearms equipment and the safekeeping facilities at his home. He says other people go out smoking and drinking, he used to have his sport of firearms, and hunting, he now has nothing to look forward to each weekend. His involvement in firearms sport and hunting, or recreational shooting, was his only activity. He also says he likes to hunt for food in the "Greek way"; he said when he went hunting he would bring back goats, ducks and cook them.
He noted he worked in high-performance car parts, he used to work on the front counter, now he works in key accounts, because he has done well in his employment. He used to work as an armed guard, he did border protection at the airport, he has been trusted in these various occupations, and his work involved working hand-in-hand with customs authorities. There was never any issue as to his character in performing these roles.
He supports his mum and he says he has done nothing wrong. He said when he was young he used to argue with police, he was a bit argumentative which "was a flaw in my life". However, he no longer behaves this way, he is otherwise of good character.
He said he has been to Thailand and when he was there he went to a pistol club in Thailand.
In relation to possessing ammunition he says he will buy ammunition when he sees it on special, or if he gets a good deal. He was intending to buy a pistol and he was told you could put .40 or .46 ammunition in its so he bought that size of ammunition. He fired a pistol of that size at the club in Thailand.
The applicant referred to his complaint about police conduct and said that he told police that he would not proceed with the complaint because he received his firearms licence back, this was an agreement he had with the police prosecutor. They reached this meeting in a little room at the courthouse.
The applicant also spoke about the record of interview and that he was subjected to duress at the time. He made a complaint at the end of the interview to the independent officer who came into the room, and this is recorded in the interview - a DVD recording of the interview was played during the hearing.
The applicant said the threat made to him was that if he didn't go to the police station he'd be put in jail. He only went to the police station because of that threat. It was put to him that earlier in his evidence he had said that his mother said he should go the police station and he said yes, his mum did say that, but that was because police said they put him in jail. He agreed he had also stated earlier that he wanted to avoid delay in the matter proceeding, and agreed to the interview for this reason.
The applicant agreed that before the record of interview started he was in the police station with the woman police officer, the custody manager. It was put to him that she read him his rights - the applicant said he did not recall this. It was noted that in part one of the record of interview he provided a consent to the interview. The applicant said he was in fear, scared out of his daylights, he didn't know what he was saying, he said the first thing that came into his head.
The record of interview was played in the proceedings, and he said when listening to it/watching it in the hearing he didn't recall saying most of the stuff he said in the interview. He says he was in shock at the time and scared, it was a first time experience for him, he wasn't thinking straight, he doesn't recall saying the things he said in the interview.
It was put to him that he was very confident, aggressive and cocky in the record of interview.
The tribunal notes that in the record of interview the applicant stated:
"I'm free coming of my own free will. You ask me, do you wanna come down, and I go, I wanna come down. And I told you that I want to go to court straight away and get my firearms back" (A255, record of interview).
To the independent officer at the end of the interview he says, in answer to a question whether he gave the interview of his own free will:
"No, under deep duress. I agreed to come here so they can put the paperwork through, so I can go to court next week or in two weeks time so I can get my firearms, but they are treating me like a criminal.....like they've trapped me. They're trying to say things that, you know what I mean. Tey're trying to put words in my mouth....... uncomfortable I feel here. I come here on my own free will, and then he's trying to, you know what I mean, single me out and makin' me uncomfortable, and he's trying to put words in my mouth" [He also states] "We're here to discuss my licence being suspended, but he is, he is trying to proceed in a criminal investigation towards me. I've done nothing wrong. He's treating me as a criminal".
The applicant gave various accounts during the hearing as to why he had ammunition for guns which he was not authorised to possess. He stated it might even be ammunition from a colleague's firearm, and it got mixed up with his ammunition. It was put to him that maybe he was holding the ammunition for somebody else and he said that this was not so. He was also inconsistent in his evidence of where he purchased the ammunition, first saying an ammunition shop, and later saying he was pretty sure he purchased them from the Canterbury show. In relation to the person called "Joe" referred to in the police interview, the applicant stated he made him up, he didn't know what he was saying. He made it up because he did not know what he was saying or doing. He has purchased ammunition from a number of places at different times. He probably would have bought this ammunition at the Canterbury racecourse. He later said he was not 100% certain where he got the ammunition he doesn't know where he purchased it.
The applicant submitted that he has no criminal convictions, he is a person of good character, the firearms matter has been dealt with by the court, he's quite happy to comply with any conditions as to the amount of ammunition he can have an home. He said firearms are his only hobby, he enjoys the sport of shooting. He also hunts goats and rabbits and brings food home, he believes in gun safety, and always safely stores his firearms, he's not involved in any gun violence, nor has he ever been involved in any incidences of violence or criminal activities. He spends his time at work, and with his family. Since his firearms license was taken he's "a person with nothing now".
The respondent submits that is not in the public interest for the applicant to hold a firearm. The respondent states that the applicant's behaviour, in the record of interview with police, indicates that he does not take responsibility for his misconduct. The applicant made allegations that the police threatened him in the record of interview, however, it is submitted that the record of interview, when viewed, clearly demonstrates otherwise: he does not appear in the video as a person who has been threatened, but appears confident. He says in the interview that he is there willingly. The respondent submits that in the interview the applicant gives a version to the police as to his possession of the ammunition and when questioned about this version (and the man Joe from the Bowral club) clearly became frustrated and uncooperative.
The respondent submits that it is not in the public interest for the applicant to be licenced to possess a firearm given that he was in possession of ammunition for a prohibited firearm and had been previously involve with a criminal organisation. The respondent's representative conceded that the evidence appeared to indicate that the applicant had moved on from that association. It was submitted that concerns remain given the applicant's collection/possession of different sorts of ammunition for guns he is not authorised to hold.
It was submitted that the tribunal needs to be satisfied that there is virtually no risk in the applicant being authorised to possess firearms and the tribunal could not be so satisfied given the following matters: recent offences, prior association with the Hells Angels, and given the applicant's failure to demonstrate his willingness to comply with the law, his lack of acknowledgement of his own failures in this regard, and his lack of remorse. The evidence indicates the applicant blames others, and has made unsubstantiated claims against police as part of this. The respondent submits that the tribunal cannot accept that the applicant will responsibly comply with the conditions of his firearm licence and for these reasons it is not in the public interest for the applicant to be authorised.
The Law
Relevant Legislation
The licensing and possession of firearms and ammunition is governed by the Firearms Act 1996 (the Act) and the Firearms Regulation 2006 (the Regulation). Section 3 of the Act provides the principles and objects of the Act:
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.
It is an offence to possess a prohibited pistol under s7 of the Act, and a prohibited pistol is defined in s4C of the Act:
4C Meaning of "prohibited pistol"
(1) In this Act,
"prohibited pistol" means any of the following kinds of pistol:
(a) a pistol with a calibre of more than .38 inch,
(b) a self-loading pistol with a barrel length of less than 120 mm,
(c) a revolver with a barrel length of less than 100 mm,
but does not include any such kind of pistol that is a black powder pistol.
Note: A prohibited pistol is not a prohibited firearm. Prohibited firearms are listed in Schedule 1 (see definition of
"prohibited firearm" in section 4 (1)).
(2) For the purposes of this Act, any pistol that would be a prohibited pistol:
(a) if it did not have something missing from it, or a defect or obstruction in it, or
(b) if it were not for the fact that something has been done to it (being something that, in the opinion of the Commissioner, is not in accordance with the recognised specifications for that pistol),
is taken to be a prohibited pistol.
Section 7A of the Act makes it an offence to possess firearms unless authorised by licence or permit:
7A Offence of unauthorised possession or use of firearms generally
(1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.
Maximum penalty: imprisonment for 5 years.
(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person:
(a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or
(b) contravenes any condition of the licence.
Section 65 of the Act provides that it is an offence to possess ammunition for a firearm, unless the person is authorised to possess it by a permit:
65 Sale, purchase and possession of ammunition
(1) A person must not sell ammunition for any firearm unless:
(a) the purchaser is the holder of a licence or permit for a firearm which takes that ammunition, or
(b) the purchaser is authorised to purchase it by a permit,
and the seller has seen the licence or permit.
Note: Section 65A imposes additional requirements for sales of ammunition by licensed firearms dealers.
(2) A person must not purchase ammunition for any firearm unless the person:
(a) is the holder of a licence or permit for a firearm which takes that ammunition, or
(b) is authorised to purchase it by a permit,
and the amount of ammunition that is purchased at any one time does not exceed the amount (if any) prescribed by the regulations.
(3) A person must not possess ammunition unless the person:
(a) is the holder of a licence or permit for a firearm which takes that ammunition, or
(b) is authorised to possess it by a permit.
(4) A person is not guilty of an offence under subsection (3) only because of possessing ammunition that is being conveyed or stored in the ordinary course of the person's duties in the business of a carrier or warehouse operator.
Maximum penalty: 50 penalty units.
Revocation of an existing licence is provided for in section 24 of the Act
Firearms Act section 24 - Revocation of licence
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997 ) if:
(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or
(b) in the case of a licensee who holds a class P1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a P1F licence under the Security Industry Act 1997 -the P1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.
(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.
Section 24(2)(b)(ii) of the NSW Firearms Act 1996 (the Act) provides that the Commissioner may revoke a firearms licence if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention. Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be refused a licence. Section 11 of the Act sets out general restrictions on the issue of firearms licences and subsections (7) and (8) state:
(7) Despite other provisions in 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;
(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
Clause 19 of the Firearms Regulation 2006 stipulates that 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 19 of the Act sets out conditions of a licence:
19 Conditions of licence
(cf 1989 Act ss 21, 28, APMC 4 (b), 9 (c))
(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.
I concur with the view of Deputy President Hennessy in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms. I concur also with the approach of the Tribunal in DP v Commissioner of Police, New South Wales Police [2007] NSWADT 27:
I refer not only to the overriding public interest in protecting the public safety, but also to the public interest in ensuring that licence holders have an understanding of their obligations, and the maturity to follow them, as well as the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the FA Act. Those concerns are sufficient to justify the revocation of his firearms licence on public interest grounds.
In Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 (18 April 2013) the Appeal Panel observed:
The public interest case was a stronger one. It is a grave decision to arm any person with a pistol - even if its use is limited to sports shooting, and made subject to special conditions such as storage in club safes.......
.
The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
We agree with the Commissioner's submission that Appeal Panels should not lightly interfere with Tribunal decisions made after full consideration of all the evidence, especially where broad discretions are being exercised. This is a case where minds might differ as to the strength of the adverse finding going to his character. The criminal offences occurred 20 years ago. Nonetheless, we consider that, because of their features, they have continuing relevance, so far as the public interest is concerned, to the administration of firearms licensing, in particular, grant of pistol licence. As our reasons suggest, we doubt the strength of the conclusion as it relates to fitness, and we might have been inclined to affirm the Commissioner's decision only on the public interest ground.
In the case Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 (18 November 2010) of the public interest grounds was considered, and the case provides a useful summary of the authorities:
The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it. The Commissioner contends that it is not in the public interest for the Applicant to hold a licence. It is necessary to consider that issue.
69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:
"The purpose of the reference to 'public interest is to ensure that private interests are not 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."
70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.
72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy president Hennessy stated at paragraph [25]
25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ...
73 A firearm licence is a privilege and not a right. Responsibilities extended to 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 at paragraph [25].
74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. 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, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".
With limited exceptions, section 75(1)(c) of the Act provides a person may apply to the Tribunal for a review of the decision to revoke a licence.
Section 63 of the Administrative Decision Tribunal Act 1997 ("the Tribunal 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 written or unwritten 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 Commissioner, 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.
Section 63(3) of the Tribunal 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.
Discussion of evidence and findings
In relation to the evidence detailed above the tribunal finds as follows. The applicant associated with members of the Hells Angels, an Outlaw Motorcycle Gang, mainly due to a friendship from childhood with a person who was a member of the Club. There is no evidence of any involvement of the applicant is any criminal activities through this association. The tribunal has no reason to reject the applicant's evidence that he severed this association, some 2 1/2 years ago. Indeed, Constable Baxter, a member of a specialised unit in the police force who would be in a position to detail police information as to the applicant's continuing association with Club members, indicated he had no record of the applicant's association with Club members over the last couple of years. The tribunal therefore finds that the applicant no longer is an associate of such a Club/Gang. And the tribunal further finds that there is no evidence of any involvement by the applicant in criminal or violent activities during the time that he was so associated, or since.
The tribunal finds that there is no evidence of the applicant's continuing association with the Hells Angels. Given the lack of any evidence, of any wrong doing or violence or criminal activity by the applicant even when he was associated, the tribunal is not satisfied that the respondent has established grounds for revoking the applicant's licence due to this prior association.
However, the tribunal does find that the applicant failed to comply with the regulatory requirements applying to him as a person licensed to possess firearms under the Act. There were two main areas of non-compliance. The first was his failure to renew his licence before it expired, and to continue to hold his firearms after the licence which authorised such possession expired. The tribunal accepts that the respondent's evidence indicates that a notice and application forms were sent to the applicant before the expiry date and that the applicant failed to apply to renew his licence. The tribunal also accepts that prior to police going to the applicant's home to seize the firearms, he had contacted the firearms registry on 10 January 2011 to request application forms be sent to him. However, the applicant continued to possess his firearms during the period where he continued to be not authorised to do so, after his licence had expired and prior to lodging the renewal application.
The applicant's evidence is that he was told by the Firearms Registry that police would come and collect his firearms, the respondent indicates such advice being given by the Registry is most unlikely. The tribunal considers its implausible that someone whose licence had expired would be advised by the regulatory authority, such as the Firearms Registry, to continue to possess the firearms unlawfully while waiting for police to come and collect. The tribunal finds that the applicant's failure to apply for his licence before expiry, and to continue to hold his firearms even though his licence had expired, although he was intending to reapply, indicates a lack of rigour and care in complying with his licence. However, in the tribunal's view, this breach is not as substantial as the second main area of non-compliance.
The second main area of non-compliance was that the applicant's possession of ammunition for firearms which he was not licensed to possess, in breach of the Act and Regulations. Possession of such ammunition is clearly an offence under the Act and indeed the applicant was charged with this offence. Although the court found the offence proved, no conviction was recorded.
A difficulty in this matter is that shortly after the applicant was before the court for this offence, the respondent renewed his firearms licence. The applicant thereby believed that this matter had been dealt with, he had been to court, and it was behind him, and he could continue to pursue his interest in recreational shooting.
The tribunal accepts the applicant's evidence, which in the tribunal's view was given in a plausible way, that his main pleasure and recreational activity is recreational shooting, and that he does feel that without access to this activity he does not have much in his life. He cares for elderly parents and lives with his elderly mother. He is considered to be a trustworthy employee, by his long-term employer, and he says his life consists of work, family and recreational shooting. The tribunal has given some weight to the importance of the sport to the applicant based on his evidence about this.
It is the respondent's submission that it is not in the public interest for the applicant to have a firearms licence and therefore the decision to revoke his licence is the correct and preferable decision. The respondent concedes that the applicant stores his firearms and ammunition safely. It is the respondent's contention that it is the applicant's failure to understand his obligations as a licence holder, his failure to acknowledge his mistakes and express remorse for such mistakes, and his possession of a collection of ammunition in breach of the Act and Regulation, for firearms which he is not authorised to possess, including high calibre pistol ammunition, which give rise to a conclusion that it is not in the public interest for the applicant to be licenced. It is his attitude of not acknowledging his breach of the law and breach of his obligations as holder of the firearms licence, demonstrated throughout the record of interview with police, which indicates that he does not have the proper understanding of his obligations and responsibilities. It is this lack of acknowledgement, and awareness of his responsibilities, which in the respondent's view, makes it not in the public interest for the applicant to be licensed to possess firearms.
The respondent states that this information about the applicant's attitude, which was clearly, in the respondent's submission, demonstrated in the record of interview, was not before the decision maker when the licence was re-issued within days of the Local Court proceedings for the firearms offences. This information was before the decision maker for the revocation an internal review decision, and indicates it is not in the public interest for the applicant to be licensed.
The tribunal finds on the evidence of Constable Baxter that the applicant's reason for possessing the ammunition, that he could use it in a pistol of a different size, indicates a lack of knowledge of firearms and a willingness to use firearms inappropriately - this finding is based on Constable Baxter's evidence that to fire the bullets in a gun of a different size would be a dangerous act.
The tribunal also noted that in the record of interview the applicant gave varying reasons for possessing the ammunition, including making up the story about a person named "Joe". The tribunal considers, in assessing the record of interview, that the applicant felt pressured by situation and by being asked questions which tested his recollection and or explanation, and which he was not anticipating. The tribunal considers, in listening to the applicant's complaints to the independent officer, that the applicant attended of his own free will to talk about his firearms licence and to progress matters so his licence could be returned. It is clear he anticipated going to court. However when questioned during the interview about the ammunition and when it was indicated to him that he may be charged, the applicant became agitated. The tribunal does not accept the applicant's evidence that he was threatened by police with gaol and this was why he agreed to a record of interview, as this conflicts with the other explanations given by the applicant - and is not supported by what he said to the independent officer at the end of the interview. It is also not consistent with his evidence that he wanted to make sure there was no delay in his matter being processed by police and the court, and his mother said he should go with police.
The tribunal finds there was an evasiveness demonstrated by the applicant in the record of interview, an indeed a false story about "Joe" was given. However a person's performance in a record of interview, in a police station, with the stress of a pending prosecution, is not a normal situation. The tribunal is cautious of drawing conclusions adverse to the applicant from the record of interview. Rather, in determining this matter, the tribunal has focused on the applicant's evidence in the hearing. In the tribunal hearing the applicant continued to fail to acknowledge his responsibility for the breaches of the Act and Regulation, he continued to blame police, he continued to give inconsistent evidence, and continued to provide no real acceptable reason for possessing the ammunition.
The tribunal finds on the applicant's evidence at the hearing that the applicant continued to express a lack of remorse for breaching his obligations as a person licenced to possess firearms, and a lack of recognition of wrongdoing, and a lack of explanation for why he possessed all the ammunition for firearms which he was not authorised to hold. The applicant's explanation that he likes to buy ammunition in bulk and on special may be an acceptable explanation for purchasing ammunition for firearms which he is authorised to possess. However, it is not an acceptable explanation for purchasing ammunition for firearms the applicant is not authorised to possess; it is not an acceptable explanation for committing an offence under the Act of possessing such ammunition.
The inadequacy of the applicant's explanation causes the tribunal concern that he does not understand the seriousness of breaching his obligations, under the Act and Regulation, as someone authorised to possess firearms. The possession of firearms is a privilege and not a right under the legislation. The maintenance of public safety is a paramount consideration for the tribunal. The tribunal considers that the applicant's actions and lack of recognition of wrongdoing, and lack of adequate explanation, indicates an inability to comply with the regulatory scheme, which in the case of firearms is a significant issue.
The public interest requires that those privileged to have a firearm licence, to be authorised to possess firearms, comply in a knowledgeable, and responsible way, with the regulatory scheme set out in the Act and Regulations. As was stated in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:
73 A firearm licence is a privilege and not a right. Responsibilities extended to 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 at paragraph [25]. .......Strict controls on the possession and use of firearms are imposed in the interests of public safety.
The tribunal is not satisfied that the applicant does understand the serious nature of his responsibilities under the Act and Regulation, nor acknowledge the seriousness of his non-compliance. He has not demonstrated his ability to act in compliance with the guidelines and laws, by his possession of the ammunition and his lack of acknowledgment of his responsibility for this non-compliance. He has failed through such lack of acknowledgment of wrong doing to indicate that it is unlikely to happen again. Accordingly, having regard to the law and the authorities cited above, the tribunal finds it is not in the public interest that the applicant be authorised to possess firearms, and as such it is not in the public interest for the applicant to continue to hold a firearms licence.
The tribunal has found the applicant has a private interest in maintaining his licence, as the tribunal accepts that it is very important to the applicant, and a significant life enjoyment for the applicant, to be able to participate in recreational shooting. However the authorities make clear that in exercising the discretion to revoke a firearms licence the public interest is to be given preference to private interest considerations (refer paragraph 71 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 set out above).
The tribunal is satisfied on the evidence in the current matter that it is not in the public interest for the applicant to continue to hold a firearms licence. Accordingly, having regard to the law and the authorities cited above, the tribunal finds it is not in the public interest that the applicant to be licenced to possess firearms, and accordingly finds that the correct and preferable decision, on the material before the tribunal, according to law, is that the applicant's licence be revoked. For these reasons the tribunal affirms the respondent's decision. The tribunal does note however that involvement in recreational shooting is a significant activity for the applicant. The tribunal notes there is no evidence that the applicant used and stored firearms unsafely. It is open to the applicant to reapply at a future date for a licence, and the respondent could consider any such application on the evidence available at such a future time. It might be useful, if any further application was made at a future date, for the applicant to be able to demonstrate knowledge of the regulatory scheme and commitment to complying with same, perhaps through attending training on the legal obligations of a firearms licence holder.
However, for the reasons detailed above, the tribunal finds the correct and preferable decision at this time is that it is not in the public interest for the applicant to have a firearms licence and the respondent's decision to revoke his licence is affirmed.
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Decision last updated: 18 June 2013
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