Cook v Commissioner of Police

[2003] NSWADT 30

CITATION:	Cook -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 30
DIVISION:	General Division
PARTIES:	APPLICANT Keith John Cook RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023292
HEARING DATES:	11/02/2003
SUBMISSIONS CLOSED:	02/11/2003
DATE OF DECISION:	02/20/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127
REPRESENTATION:	APPLICANT In person RESPONDENT C Capper, advocate
ORDERS:	The Commissioner's decision to revoke Mr Cook's Category A firearms licence is affirmed.

1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to revoke the firearms licence held by Mr. Keith Cook.

2 Mr. Cook operates a farm located approximately 15 kilometres south of Tumbarumba. He was issued with a Category A firearms licence on 4 January 1999. The licence was due to expire on 12 February 2004. He uses firearms to control birds from eating his gapes.

3 On 31 January 2002, Police attended the property in relation to a disturbance involving Mr. Cook’s son. Mr. Cook’s son has a psychiatric history and he does not comply with medication requirements. Police had attended Mr. Cook’s property on two earlier occasions in relation to incidents involving Mr. Cook’s son. On one occasion Mr. Cook’s son was wielding an axe, smashing windows and was also wielding a knife.

4 During the 31 January 2002 incident Mr. Cook informed the Police that his son had possession of a firearm, but that there was no bolt with the firearm. The bolt was stored in a dressing table drawer elsewhere in the premises. Mr. Cook informed the Police that other firearms were on the property stored in a wooden gun box that had been secreted in the garden. He handed this box to the Police and when the Police opened the box they found three firearms (two 12 gauge Shotguns and a 'LITHGOW' .22 rifle), ammunition, bolts and magazines. Police also located a 'silencer' with one end of the silencer being able to be screwed onto the end of the 'LITHGOW' .22 rifle. The silencer is a prohibited article in New South Wales.

5 Two of the firearms were not registered and the storage facilities did not meet the requirements of Mr. Cook’s licence. Police took possession of the firearms and Mr. Cook was charged with offences. His licence was suspended on 10 March 2002 and subsequently revoked.

6 On 4 April 2002 Mr. Cook was convicted in the Tumbarumba Local Court in relation to offences of not having approved storage required by his licence; having possession of a prohibited firearm and having possession of unregistered firearms. He was fined a total of $900 in relation to those convictions.

7 Mr. Cook appealed the convictions and on 22 May 2002 the Albury District Court upheld the appeals. The offences were found proven but they were dismissed without proceeding to conviction.

8 Mr. Cook’s licence was revoked on 27 July 2002. On 3 September 2002 Mr. Cook applied for an internal review of the decision to revoke the licence. The Internal review was undertaken by a delegate of the Commissioner and was finalised on 25 September 2002. The decision was taken that the Commissioner's decision to revoke Mr. Cook’s category A firearms licence is to stand. The Commissioner's delegate gave detailed reasons for the decision and Mr. Cook was notified of the outcome of the review and those reasons.

Reviewable decision

9 The reviewable decision is that of the Commissioner to revoke Mr. Cook’s firearms licence. On 1 August 2002 Mr. Cook applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s Deputy President on 21 January 2003 at which time she made directions for the filing of documents and the matter was listed for hearing on 11 February 2003. The matter proceeded on that day.

Nature of proceedings

10 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

11 These are not adversarial proceedings in which Mr. Cook carries an onus of proof. Mr. Cook, by making the application, triggers a process of merits review by the Tribunal. Mr. Cook does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Cook and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

12 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and “there is no presumption that the decision of the [Commissioner] is correct” (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

13 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation

14 The relevant provisions of the Firearms Act 1996 (“the Act”) are found in sections 11 24, 39 and 40 of that Act. Clauses 5 and 17 of the Firearms (General) Regulation 1997 is also applicable. As so far as they are relevant to these proceedings those sections and clauses provide:

“11

General restrictions on issue of licences

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

…

(3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.

(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the applicant's way of living or domestic circumstances, or

…

(5) A licence must not be issued to a person who:

…

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

…

(7) 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.”

“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.

(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:

(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

(d) for any other reason prescribed by the regulations.”

15 Sections 39 and 40 in Part 4 of the Act relate to the safe keeping of firearms. These sections provide:

“Part 4 Safe keeping of firearms
39

General requirement

(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.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

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

40

Category A and category B licence requirements

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) 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 receptacle containing any such firearm,

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

Maximum penalty: 20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

16 Clause 5 of the Firearms (General) Regulation 1997 provides

“5

Offences that disqualify applicants

For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(a) Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm, or any other weapon, committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).”

17 Clause 17 of the Firearms (General) Regulation 1997 provides:

“17

Revocation of licence - additional reasons

In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.”

Mr. Cook's case

18 Mr. Cook presented evidence on his own behalf. While he disputes some of the details presented in the Commissioner’s chronology of events, he agrees with the majority of the chronology presented.

19 Mr. Cook argues that the incidents which form the basis of the Commissioner’s decision all relate to his son and that he should not be held responsible for his son’s actions. He is no threat to the public and therefore there is no reason why he should not have his licence returned.

20 Mr. Cook’s evidence is that his son will not be returning to the property and therefore no longer represents a threat. He said that he has acquired the proper storage facilities for his firearms and through the events relating to his convictions and appeals and licence revocation he has learned a great deal about the applicable law.

21 Mr. Cook said that when he initially obtained his firearms licence he had to undertake a test to ascertain his knowledge of the safety and storage requirements but that this was a very limited test. At no time since that test has he been informed of new storage requirements and his storage facilities have never been inspected. He argued that his storage facilities are better than will be found on most rural properties. His gun box was secured with a casehardened padlock and every door on the premises is deadlocked. When he leaves the property these doors are locked. He said that there is minimal crime in his local area and that there is no risk to the public posed by the method of storage he has maintained. In any event he has obtained a storage cabinet which complies with the legislative requirements.

22 He submitted that the charges and revocation would not have happened if he had not volunteered the existence of the storage box. He had brought this to the attention of the police on 31 January 2002. If he had not done so the Police would never have known it was there. He argued that his honesty in this regard should be taken into account.

The Commissioner's case

23 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. With the exception of the particular circumstances of the case, there is no general suggestion that Mr. Cook is not a person of good character. However, the Commissioner considers that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. Cook might have in possessing his firearms.

24 In so far as they are relevant to these proceedings, the reasons given following the internal review and upon which the Commissioner relies provided:

“D. REASONING PROCESS:

In relation to the domestic situation between you and your son, I note a number of incidents recorded on the COP System. They include an incident dating back to December 1997 where police attended your residence on a report of a break and enter offence … your wife, Wendy Cook, telephoned police and informed them that she and you believed your son had committed the offence. … It was reported that your son has, on a number of occasions, been admitted to the Rozelle Hospital.

Another incident involving a domestic situation with your son was that on, 22 April 2001 an argument developed between you and your son resulting in your son picking up an axe and smashing windows of your home. Police were called and in the meantime your son located a knife and waved it around wildly. ... Your son was … admitted to the Gissing House Psychiatric Ward.

The most recent recorded event involving a domestic situation between you and your son was on 31 January 2002, when police were called to attend your residence in relation to a report that your son was damaging property. …

The abovementioned incidents raise a number of concerns. Firstly, in relation to your domestic circumstances, I am of the opinion that they are not of a suitable type within which firearms should be present. Further, I hold concerns that the obvious lack of security measures taken to ensure the safekeeping of your firearms and apparent disregard to their safekeeping might be duplicated in the future. As a direct result of your failure to safe keep your firearms, your son, who suffers from a psychiatric illness, easily obtained one of your firearms and used it to damage property and threaten violence against you, your wife and Police. I am satisfied that your domestic circumstances present an unacceptable risk to public safety.

It has been held that firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.

In addition, your failure to safe keep your firearms and ammunition is in direct breach of the Act and contravenes the conditions upon which you were granted a firearms licence. Moreover, I note that you were in possession of two firearms that were not registered.

I am unable to accept your statement to police that you were 'unaware' of the need to register and safely keep any firearms in your possession as you have held a firearms licence for a lengthy period of time. As such I believe that it is not unreasonable to expect you to know what was required of you in relation to such important issues. This view is supported by the fact that two of the four firearms in your possession were registered and three of your four firearms were being kept in a 'wooden box' albeit of a type unsuitable and together with ammunition.

Furthermore, I note that in recent times there was an extensive media campaign that advised to the general public (of NSW) that the NSW Police Service was conducting a 'Gun Amnesty' - commencing in June 2001 through to November 2001. That Amnesty allowed for the unconditional surrender of firearms and/or the registration of (non-prohibited) firearms. As such, there was ample opportunity for you to have your firearm registered but you chose otherwise. This, I believe, suggests that you do not presently hold an attitude that is conducive to responsible firearms ownership.

I hold the view that 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 to the same.

It is clear that Parliament has identified the safe storage of firearms as a central and critical objective of the legislation. Further, as is made clear from Part 4 of the Act, Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.

The principles and objectives of the Act are to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms. Section 19(2)(a) and 40 of the Act provide express requirements as to how that objective is to be met in regard to safe storage. That is, a condition of the licence is that the firearms are to be stored safely in the manner prescribed. The ADT has expressly stated that these are fundamental requirements to be upheld by licensees. …

When considering whether it is in the interest of the public for you to have the privilege of holding a firearms licence, I hold the view that it is appropriate to consider and weigh up your interests with those of the wider community. I submit that public safety is the paramount consideration and that the system of firearms controls is intended to be very strict. I also believe that the community expects that a firearm will not be used as a weapon.

I am satisfied that the safety of the general public was placed at risk through your failure to abide by the conditions of your firearms licence and notwithstanding your need to control birds from eating your grapes, the safety of the public is to be placed before your individual interests.

Further, I believe that the public would view your actions as a serious breach of the conditions upon which you were granted a firearms licence and notwithstanding your advice that you have now installed an appropriate storage facility I am not confident that the public would be secure in the knowledge that a similar lapse may not reoccur.”

25 Mr. Capper for the Commissioner argued that Mr. Cook’s ignorance of the legislative requirements is no excuse. The legislative requirements are strict and the obligation is on the licensee to comply with those requirements. He said that Mr. Cook’s belief that there is no crime in his area is naive. Other persons could go onto the property when Mr. Cook was absent and take the firearms. The firearms were not secured and this is a breach of the licence requirements. Mr. Cook’s son’s actions have demonstrated the risk associated with that lack of security. Mr. Capper argued that Mr. Cook still does not appreciate fully the consequences that could have come from his son’s actions.

26 Mr. Capper stated that other means are available to Mr. Cook to control the bird problems he experiences. He argued that gas guns can be programmed to fire sporadically and that these could be an effective deterrent.

27 Mr. Capper referred the Tribunal to the decision of Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 and submitted that this decision is authority for the principle that for a revocation decision based on failure to store firearms safely, to be set aside, an applicant must show that there are persuasive and relevant considerations, which take their matter outside the ordinary case. He argued that the fact that Mr. Cook has obtained an appropriate storage cabinet and his need for the firearms to shoot birds do not constitute persuasive and relevant considerations which take their matter outside the ordinary case. He submitted that the safety of the public is to be placed before Mr. Cook’s individual interests and therefore the Commissioner’s decision should be affirmed.

Findings

28 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:

- that Mr. Cook’s son has a psychiatric history and he does not comply with medication requirements;

- that on 24 December 1997 police were called to attend Mr. Cook’s residence in relation to a break and enter by Mr. Cook’s son;

- that on 4 January 1999 Mr. Cook was issued with a Category A firearms licence for the genuine reason of 'primary production';

- that on 22 April 2001 police were called to attend Mr. Cook’s residence in relation to a domestic dispute involving Mr. Cook’s son who was wielding an axe, smashing windows and was also wielding a knife;

- that on 31 January 2002 police were called to attend Mr. Cook’s residence in relation to a domestic dispute involving Mr. Cook’s son who had maliciously damaged property using an unsecured rifle and had to be subdued by the use of OC Spray;

- that on 31 January 2002 police were made aware of two unregistered firearms and a prohibited silencer at Mr. Cook’s residence;

- that Mr. Cook appeared before the Tumbarumba Local Court on 4 April 2002 where he was convicted of offences relating to possession of unregistered firearms, not having approved storage and possession of a prohibited silencer. He was convicted of those offences and fined;

- that the Albury District Court on 22 May 2002 quashed the convictions of the Tumbarumba Local Court although it found Mr. Cook guilty without proceeding to conviction;

- that Mr. Cook has now installed a steel cupboard and bolted it to his premises; and

- that Mr. Cook requires access to firearms to control birds from eating his grapes.

29 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Cook is granted a licence. Mr Cook has breached certain provisions of the Act in relation to storage and possession of unregistered firearms even though he was not convicted of those offences. Part 4 of the Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that 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.

30 In Phegan -v- Commissioner of Police, New South Wales Police Service the Deputy President of this Tribunal undertook a review of the various Tribunal decisions reviewing decisions of the Commissioner to revoke or not issue a firearms licence when the licensee or applicant has breached storage requirements. I agree with the Commissioner’s submission that the decision in Phegan provides an accurate statement of the law. The Deputy President stated at paragraphs 19 and 20 of her decision:

“19 These decisions make it clear that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case.

20 Mr Phegan failed to store firearms and ammunition safely in a situation where one of his children accessed, loaded and fired one of those firearms. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision to revoke Mr Phegan's licence.”

31 While there is no suggestion that Mr. Cook’s son had access to ammunition or was able to fire any of Mr. Cook’s firearms, the underlying principle remains. In my view, given the history of incidents involving his son, Mr. Cook could reasonably have been expected to be extra cautious about the storage of his firearms. His son clearly had a history of violent outbursts and it was predictable that if he had access to the firearms severe consequences could have resulted.

32 I note that Mr Cook indicated that he had good intentions in regard to the registration of the firearms and that he had in fact purchased the storage cabinet prior to the incident of 31 January 2002. I also note his views about the storage of firearms on rural properties and I fear that his views are correct. However, that is not a mitigating factor in regard to Mr. Cook’s situation.

33 I agree with the Commissioner’s statements regarding the media campaign that surrounded the gun amnesty in 2001. I have difficulty in accepting that Mr. Cook could not have reasonably been expected to be aware of his obligations in regard to the registration of the firearms.

34 The public interest requires that all licensees be aware of and comply with the legislative requirements. On the evidence before me I am not satisfied that Mr Cook has sufficient knowledge of the legislative requirements in regard to the possession, storage and safety of firearms to allow that public to be comfortable with his holding a licence. It follows in my view that the correct and preferable decision is to revoke his firearms licence. Accordingly I affirm the Commissioner's decision to revoke Mr. Cook’s firearms licence.

35 I note that the issue of training was raised at the hearing and that Mr. Cook indicated that he is prepared to undertake a course in safety awareness. It is possible that if Mr. Cook successfully completed such a course and if Mr. Cook were to reapply for a firearms licence, the Commissioner may well reach a different conclusion.

Orders

The Commissioner’s decision to revoke Mr. Cook’s Category A firearms licence is affirmed.