Cottrell v Commissioner of Police, NSW Police

[2004] NSWADT 244

CITATION:	Cottrell v Commissioner of Police, NSW Police [2004] NSWADT 244
DIVISION:	General Division
PARTIES:	APPLICANT Robert Cottrell RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	043278
HEARING DATES:	21/10/2004
SUBMISSIONS CLOSED:	10/21/2004
DATE OF DECISION:	10/27/2004
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996
CASES CITED:	O'Sullivan v Farrar (1989) 168 CLR 210; Commissioner of Police v Toleafoa ([1999] NSWADTAP 9
REPRESENTATION:	APPLICANT In person (by phone) RESPONDENT Senior Sergeant Shepherd
ORDERS:	The decision of the Commissioner to refuse to issue Mr Cottrell with a Category ABH firearms licence is set aside. In substitution for that decision a decision is made to issue Mr Cottrell with a Category ABH firearms licence.

Introduction

1 Mr Cottrell is a 41 year old man who has had various categories of firearms licence, on and off, since 1982. He uses firearms to shoot rabbits on a nearby property and is also interested in target shooting. On 21 April 2004 the Commissioner refused his application for a Category ABH firearms licence. The reason for the refusal was that on 26 November 2003 he was found guilty of not having approved storage for his firearms. In addition, Mr Cottrell was convicted on 16 June 2003 of negligent driving and an act of aggravated cruelty to a kangaroo. The Commissioner submitted that, on the basis of those matters, it was contrary to the public interest for Mr Cottrell to have a firearms licence. The Tribunal’s task is to decide whether that was the correct decision.

Late application to the Tribunal

2 Although the Commissioner made the internal review decision on 11 June 2004, Mr Cottrell did not apply to the Tribunal for a review of that decision until 19 August 2004. An application for a review of a reviewable decision must be made within 28 days from the day on which an internal review is taken to have been finalised. Section 57 of the Administrative Decisions Tribunal Act 1997 allows the Tribunal to accept late applications if the applicant has applied in writing and the Tribunal is of the opinion that he or she has provided a reasonable explanation for the delay in making the application. In this case, Mr Cottrell stated that he did not receive notice of the decision until 12 August 2004. In those circumstances we extend the time for him to lodge the application with the Tribunal.

Factual findings

3 17 March visit. On 17 March 2003 police officers went to Mr Cottrell’s home. Mr Cottrell disputes the assertion in the Commissioner’s Statement of Reasons that the police officers told him that his safe did not meet the safe keeping requirements for firearms and gave him two weeks to rectify the situation. According to Mr Cottrell, the police officers were satisfied with the safe in which he stored his firearms but were concerned about whether all his firearms were registered. I do not have the benefit of any diary entries of the police visit or any report recording that visit. The only evidence that the police officers mentioned storage concerns on 17 March 2003 are assertions to that effect in the Statement of Reasons and the Internal Review Decision. In those circumstances, I prefer Mr Cottrell’s direct evidence of what happened on that day.

4 Kangaroo incident. On 5 June 2003, Mr Cottrell was driving home when he says he hit a kangaroo. The Internal Review Decision states that he “chased a kangaroo and drove at speed until he ran over it”. In the absence of any evidence corroborating this version of events, I prefer Mr Cottrell’s evidence that, in the first instance, he hit the kangaroo accidentally. He says that rather than leaving it injured by the side of the road, he ran over it twice to make sure it was dead and then got out of his car and broke its neck. He then drove home to get a rope, returned to the scene and dragged the kangaroo behind his car for about 200 meters to a reserve. He then put the kangaroo in the back of his utility and disposed of it elsewhere. Three witnesses observed these events and made a complaint to police. Mr Cottrell pleaded not guilty to the charges but was convicted of negligent driving, for which he was fined $400, and committing an act of aggravated cruelty on an animal, for which he was ordered to do 350 hours of community service. I have no court papers relating to this conviction.

5 13 June visit. On 13 June 2003, police officers visited Mr Cottrell to check his firearms storage and ask him about the incident involving the kangaroo. On that occasion Mr Cottrell says that one of the police officers made a comment that the walls of his safe were too thin. Police seized six firearms which were not stored in compliance with the minimum storage requirements. A few days later Mr Cottrell bought a new “approved” safe in which to store his firearms.

6 Finding of guilt for not having approved storage. On 26 November 2003 Mr Cottrell pleaded guilty to the offence of not having approved storage for his firearms. Mr Cottrell says that the reason that the safe was not suitable was that it had external hinges when the requirement was for internal hinges. That assertion is not consistent with the conviction recorded in the Criminal History document provided to the Tribunal. That document states that Mr Cottrell was convicted of being the holder of a Category A or B licence and did “not have approved storage.” There is no requirement that I have been able to identify, for the holder of a Category A or B licence to have internal hinges on the receptacle in which the firearms are stored. In particular, there is no mention of hinges in the NSW Police Firearms Registry Safe Storage Requirements for Category A or B licences.

7 I simply do not have sufficient evidence to make a finding as to the basis for the Local Court’s conclusion that Mr Cottrell did not have approved storage. All that the evidence reliably discloses is that his safe did not meet the minimum standard in some respect. According to Mr Cottrell, the reason the Magistrate did not convict him was that he was satisfied that he had taken all the necessary steps by the time the matter went to Court, to install approved storage facilities for his firearms. If Mr Cottrell had been convicted he would not have been eligible to hold a firearms licence for 10 years. (Firearms Act s 11(5).)

Public interest

8 The Commissioner has an unconfined discretion to issue a licence or refuse to issue a licence: s 11. Regardless of any other provision in the Firearms Act, the Commissioner may refuse to issue a licence if he considers that it would be contrary to the public interest to do so: s 11(7). That is the only basis on which the Commissioner relied for refusing Mr Cottrell’s application.

9 The phrase `in the public interest' was considered by the High Court in O'Sullivan v Farrar (1989) 168 CLR 210. In a joint judgment Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216:

...the expression `in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only `in so far as the subject matter and scope and purpose of the statutory enactments may enable...
One of the principles of the Firearms Act is that the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety: s 3(1)(a). One of the objects of the Act is to ensure that firearms are stored and conveyed in a safe and secure manner: s 3(2)(e). The concept of public interest is a broad one which can encompass a person’s character. ( Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25). In this case, relevant considerations include:
· Mr Cottrell’s reason for not having approved storage;

· the length of time the firearms were not stored in an approved manner;

· the potential danger posed by failure to have approved storage;

· the person's understanding of the importance of approved storage and the likelihood that firearms will be stored in an approved manner in the future; and

· the reason Mr Cottrell has a firearms licence; and

· any other relevant matters including the circumstances of Mr Cottrell’s conviction for negligent driving and aggravated cruelty to an animal. (See Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at [19]

10 The offence for which Mr Cottrell was found guilty was not failure to store his firearm safely, but the less serious offence of not having approved storage. Mr Cottrell had a safe to store his firearms which did not comply with minimum storage requirements. There was no evidence as to how long Mr Cottrell had been storing his firearms in an unapproved safe, nor is there any evidence which would enable me to assess the potential danger to the public of Mr Cottrell’s failure to have approved storage. There is very little likelihood that Mr Cottrell’s firearms will not be stored in an approved manner in the future because he now has an approved safe.

11 The fact that Mr Cottrell was ordered to do 350 hours of community service indicates that his conviction for committing an act of aggravated cruelty on an animal was relatively serious. It reflects adversely on Mr Cottrell’s character. On the other hand, it did not relate to the possession or use of firearms. Without further information about the circumstances of the offence, I am not satisfied that Mr Cottrell’s conviction for that offence means that there is a risk that he would use firearms inappropriately in the future.

12 While I am mindful of the fact that holding a firearms licence is a privilege which is conditional on the overriding need to ensure public safety, I am not satisfied on the basis of the evidence available in this case that it is not in the public interest for Mr Cottrell to be issued with a Category ABH firearms licence.

Order

The decision of the Commissioner to refuse to issue Mr Cottrell with a Category ABH firearms licence is set aside. In substitution for that decision a decision is made to issue Mr Cottrell with a Category ABH firearms licence.