Dalziell v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 79

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79
Hearing dates:	22 February 2018
Date of orders:	11 April 2018
Decision date:	11 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	FIREARMS - firearms prohibition order – pre-emptive consorting notice - whether person “not fit, in the public interest” – possession of firearm – associations with persons having criminal records
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Firearms Act 1996
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43
Category:	Principal judgment
Parties:	Stuart James Dalziell (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: P Griffin SC (Applicant) C Mantziaris (Respondent)   Solicitors: O’Neills Law (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	2017/00319640
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis and to those paragraphs of these reasons identified as [Not for publication]. That material is not to be published or released to the Applicant, without further order of the Tribunal.

REASONS FOR DECISION

Introduction

1. This is an application for review of a determination by the Commissioner of Police (“the Commissioner”) to issue a Firearms Prohibition Order (“FPO”) against Mr Stuart Dalziell (“the Applicant”) pursuant to Section 73 of the Firearms Act 1996 (“the Firearms Act”).

2. There is no suggestion that the Applicant has ever made an application for a firearms licence.

3. The Commissioner issued the FPO in July 2017. At that time the Commissioner also issued the Applicant with a pre-emptive consorting notice - an official warning disclosing that particular persons are convicted offenders. It is an offence to consort with those convicted offenders after having been given an official warning in relation to each of those convicted offenders.

4. There are no allegations that, since the issue of the official warning, the Applicant has consorted with those persons named in the official warning.

5. The Commissioner contends that the Applicant is not fit to have possession of a firearm and that it is not in the public interest for him to do so.

6. Pursuant to section 63 of the Administrative Decisions Review Act 1997 (“the ADR Act”) the Tribunal is to make the correct and preferable decision having regard to the material then before it. The Tribunal may affirm, vary, or set aside the decision of the Commissioner.

Applicable legislation

7. The Commissioner has the power to prohibit any person from possessing a firearm if, in the Commissioner’s opinion, the person is not a fit person in the public interest to have possession of a firearm. Once an FPO is made it is an offence for an FPO subject to possess a firearm or ammunition, to reside in premises where a firearm or ammunition is kept, or for another person to sell or give a firearm or ammunition to someone they know is an FPO subject. Police are able to conduct searches in aid of an FPO. The search powers may not be used arbitrarily or unreasonably. However, they enable police, without a warrant, to search an FPO subject’s body and any vehicle or premises that the person occupies, controls or manages. A search may be conducted ‘as reasonably required’ to determine if the FPO subject has committed an offence by having a firearm, firearm parts or ammunition.

8. Section 73 of the Firearms Act provides:

73 Firearms prohibition orders

(1) The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

(2) A firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made.

(3) The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason.

9. The effect of an FPO is set out in section 74 of the Firearms Act which provides:

74 Effect of firearms prohibition order

(1) Prohibition on persons acquiring, possessing or using firearms, firearm parts or ammunition

A person who is subject to a firearms prohibition order must not acquire, possess or use a firearm.

Maximum penalty: imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

Note : Reference to a pistol includes a prohibited pistol.

(2) A person who is subject to a firearms prohibition order must not acquire or possess a firearm part.

Maximum penalty: imprisonment for 14 years if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.

(3) A person who is subject to a firearms prohibition order must not acquire or possess ammunition for any firearm.

Maximum penalty: imprisonment for 5 years.

(4) Prohibition on supplying firearms etc to persons subject to orders

A person must not supply or give possession of a firearm or firearm part to another person knowing that the other person is subject to a firearms prohibition order.

Maximum penalty: imprisonment for 14 years if the firearm is a pistol or prohibited firearm or if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.

(5) A person must not supply or give possession of ammunition for any firearm to another person knowing that the other person is subject to a firearms prohibition order.

Maximum penalty: imprisonment for 5 years.

(6) Prohibition on persons residing at premises where there are firearms etc

A person who is subject to a firearms prohibition order is guilty of an offence if a firearm, firearm part or ammunition for any firearm is kept or found on premises at which the person is residing.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

(7) It is a defence to a prosecution for an offence under subsection (6) if the defendant proves that the defendant:

(a) did not know, and could not reasonably be expected to have known, that the firearm, firearm part or ammunition was on the premises, or

(b) took reasonable steps to prevent the firearm, firearm part or ammunition from being on the premises.

(8) Prohibition on persons attending certain premises

A person who is subject to a firearms prohibition order must not without reasonable excuse attend:

(a) the premises specified in a firearms dealer's licence, or

(b) a shooting range, or

(c) the premises of a firearms club, or

(d) any other premises of a kind prescribed by the regulations.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

(9) Membership of a firearms club is not a reasonable excuse for the purposes of subsection (8).

(10) Exemptions

The Commissioner may by order exempt a person, either unconditionally or subject to conditions, from a specified provision of this section.

(11) Proof of possession of firearm parts and ammunition

For the purposes of any proceedings for an offence under this section, a reference in section 4A to a firearm is taken to include a reference to a firearm part or ammunition.

10. The powers of police to search in relation to an FPO are set out in section 74A of the Firearms Act which provides:

74A Powers of police to search for firearms in possession of person subject to firearms prohibition order

(1) The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).

(2) A police officer may:

(a) detain a person who is subject to a firearms prohibition order, or

(b) enter any premises occupied by or under the control or management of such a person, or

(c) stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,

and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.

(3) In this section,

"premises" includes any place, whether built on or not.

11. Section 4 of the Firearms Act provides the following definitions:

"firearm" means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm.

"firearm part" means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm.

"ammunition" includes:

(a) any article consisting of a cartridge case fitted with a primer and a projectile, or

(b) any article consisting of a cartridge case fitted with a primer and containing a propelling charge and a projectile, or

(c) blank cartridges, airgun pellets, training cartridges or gas cartridges, or

(d) any other article prescribed by the regulations for the purposes of this definition.

12. Section 10(4) of the Firearms Act allows for the consideration of spent convictions in the licensing process. It provides:

10 Applications for licences

...

(4) Section 12 of the Criminal Records Act 1991 does not apply in relation to an application for a licence.

13. Section 93X of the Crimes Act 1900 provides:

93X Consorting

(1) A person who:

(a) habitually consorts with convicted offenders, and

(b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence.

Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both.

(2) A person does not "habitually consort" with convicted offenders unless:

(a) the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and

(b) the person consorts with each convicted offender on at least 2 occasions.

(3) An "official warning" is a warning given by a police officer (orally or in writing) that:

(a) a convicted offender is a convicted offender, and

(b) consorting with a convicted offender is an offence.

14. Proceedings in the Tribunal are generally open to the public. However, section 49(2) of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”) provides:

49 Hearings to be open to public

...

(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

15. Orders were made under section 49(2) of the CAT Act and part of the proceedings continued in the absence of the Applicant and the public.

16. Orders were also made under section 64 of the CAT Act which provides that the Tribunal may restrict the disclosure of material received in evidence. Section 64 applies to the material that was filed in these proceedings on a confidential basis and to those paragraphs of these reasons identified as “[Not for publication]”. That material is not to be published or released to the Applicant, without further order of the Tribunal. Section 64 provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

The material before the Tribunal

17. The Commissioner relies on the evidence of Detective Sergeant Andrew Ross; documents filed pursuant to section 58 of the ADR Act; and a chronology of events. The Commissioner relies on evidence that was presented in a confidential hearing that was conducted in the absence of the Applicant, his representatives and the public.

18. The Applicant provided a written statement and statements by Mr Brian Riley and Mr Martin Stone. The Applicant did not give evidence and was not available for cross-examination. Neither Mr Riley nor Mr Stone were required for cross-examination.

The Applicant’s Case

19. The Applicant stated that he has never made an application for a firearm and he does not wish to do so. He said that he is appealing against the FPO as it provides a wide discretionary basis for any police officer to apprehend him and to question him as to his movements. Further, he said that he is concerned that the FPO enables a police officer to attend his premises where he has a wife and young children.

20. In the internal review determination the Commissioner’s delegate referred to the powers authorised under the FPO and noted:

Although the additional police powers pursuant to Section 74A of the Act can be exercised without a warrant, they must only be exercised exclusively for the purposes of conducting searches for firearms/firearm parts/ammunition. Directly relevant to this point are your convictions for unlawfully arming yourself with firearms as is your association with others people who also have such convictions.

21. The Applicant identified various aspects of his criminal history and sought to provide context and clarification for the events that lead to various charges brought against him. He expressed concern in regard to the Commissioner’s reliance on prior spent convictions and submitted that the Commissioner is not entitled to rely on them.

22. He noted that pursuant to section 10(4) of the Firearms Act the Commissioner is entitled to rely on spent convictions “in relation to an application for a licence". However, he says that he has not made any application for a licence and therefore the spent convictions cannot be considered or relied upon for any purpose related to imposition of the FPO.

23. The Applicant conceded that the Commissioner is entitled to rely on the circumstances relating to those convictions. However, he submitted that when the circumstances are taken into account they cannot be regarded as serious offences.

24. He provided an explanation for what the Commissioner referred to as “convictions for unlawfully arming yourself with firearms”. In that regard he identified and explained an incident in which he had possession of a shortened firearm (he found it and put it on display in his home) and the unauthorised possession of an 'imitation firearm’ (he had attended a fancy dress party and wore a Stetson hat, pinned stripped pants and shirt and a handmade holster with a toy plastic gun in that holster).

25. The Applicant’s evidence in regard to the fancy dress party is supported by the evidence of both Mr Riley and Mr Stone.

26. Mr Riley has known the Applicant since approximately 1996. He confirmed that he remembered that in 1997 the Applicant had attended an end of year fancy dress party in the function room at the Cudgen Leagues Club and that he was wearing a gangster outfit and that part of the costume was a toy hand gun in a holster. He stated that he knew it was a toy gun.

27. Mr Stone has known the Applicant for approximately 35 years. He also recalled a fancy dress party in 1997, sometime after September of that year. He recalled that the Applicant was dressed as a gangster at the party and that part of his costume was that he had a toy gun. He recalled that the gun was plastic.

28. In relation to the Commissioner’s submission that little weight can be given to the Applicant’s statement because he was not available for cross-examination, Mr Griffin argued that the Commissioner has had the Applicant’s statement since last December and has not provided any contradiction to the statement. He submitted that in those circumstances weight can be given to the Applicant’s evidence.

29. In July 2017 the Commissioner issued the Applicant with a pre-emptive consorting notice - an official warning disclosing that particular persons are convicted offenders. It is not an offence to be issued with an official warning. Pursuant to section 93X of the Crimes Act an offence occurs if, after the issue of the warning, the Applicant consorts with that person or persons named in the official warning. There are no allegations that the Applicant has consorted with the persons named since the issue of the official warning.

30. The Applicant does not dispute that he has been associated with the Lone Wolf Motor Cycle Club (“the Lone Wolves”) for a long period. He stated that on numerous occasions he has been contacted by the New South Wales Police, State Crime Command and Operation Raptor and that they have requested his assistance. He further stated that on each of those occasions he offered his assistance. He submits that he should not be penalized for being a good citizen.

31. He denies that he is now, or has ever been, the National President or Chapter President of the Lone Wolves nor has he ever informed anyone that he has held those positions. He stated that he never held any senior titles with the Lone Wolves but agreed that he was regarded as a senior member of the club. He further stated that he is no longer an active club member of the Lone Wolves and no longer takes part in any activities with the club.

The Commissioner’s Case

32. As noted, the Commissioner contends that that the Applicant is not fit in the public interest to have possession of a firearm.

33. The Commissioner relies on the Applicant’s criminal record and also relies on material that was provided to the Tribunal on a confidential basis.

34. Detective Sergeant Ross attended the hearing and was cross-examined. He also gave evidence on a confidential basis.

35. Detective Sergeant Ross stated that he has had dealings with the Applicant and that the Applicant was always co-operative and when asked he always offered assistance to the police.

36. [Not for publication]

37. [Not for publication]

38. [Not for publication]

39. [Not for publication]

40. [Not for publication]

41. [Not for publication]

42. [Not for publication]

43. [Not for publication]

44. [Not for publication]

45. [Not for publication]

46. [Not for publication]

47. [Not for publication]

Consideration

48. Section 63 of ADR Act provides that the Tribunal’s role in determining an administrative review of an administratively reviewable decision 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. The Tribunal is to consider the evidence available at the time of the original decision and any other relevant material. It is to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. There is no presumption that the Commissioner’s decision is correct.

48. Senior Member Walker considered the approach to be taken in matters concerning FPOs in his recent decision in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43. At paragraphs [50] – [57] he stated:

50.    Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is “conditional on the overriding need to ensure public safety”. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(5A) further provides that a licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. The Commissioner may also refuse to issue a licence if the Commissioner considers the issue of the licence would be contrary to the public interest: s 11(7).

51.    The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).

“Not fit, in the public interest”

52. While the applicant in this case is not applying for a licence or permit, the approach illustrated in those provisions is applicable by analogy in relation to the issue raised by s 73(1). The tribunal was not referred to any authorities on the interpretation of s 73(1), other than the comment by the then Premier, Mr O’Farrell, when introducing the relevant Bill, that “Nothing in this legislation should concern innocent citizens of this State. This legislation will concern those who are involved in criminal activities involving guns. This legislation will ensure that those people have no place to hide”.

53. The matter thus appears to be a case of first impression. The language used, “not fit, in the public interest”, is obviously materially different from the “fit and proper person” test in the Firearms Act’s licensing provisions. It implies that even though a person may, like the applicant in this case, have an unblemished record, public interest considerations may render the person unfit and make it appropriate to issue an FPO against him or her.

54.    In O’Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

55.    The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

56.    The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

57.    In this context, “what is in the public interest is very substantially the same question is whether there is a threat to public safety”: Barrow v Commissioner of Police, New South Wales Police Service, 6 September 2004, unreported. Further, the threat to public safety may not result from any act or omission by the person against whom the order is issued. “Given the breadth of the Commissioner’s discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence”: Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149, [31].

50. I agree with that summary and adopt it.

51. At paragraphs [43] – [46] of Hamid Senior Member Walker also noted:

43   It was pointed out that in the New South Wales Ombudsman Review of Police Use of the Firearms Prohibition Order Search Powers (August 2016), it was found that of over 2500 separate searches conducted under the powers in s 74A, police found firearms, ammunition or firearm part in 2 per cent of searches. That suggested the power was being used more as a roving search power used randomly on FPO subjects, rather than “as is reasonably required”. Given those statistics, the applicant had grounds to be concerned that she would be subject to unnecessary searches, which might continue indefinitely due to the inability to review the FPO at a later date. The Ombudsman had recommended that FPOs should expire after five years, as in Victoria, but the legislation had not been changed to reflect that recommendation.

44   The Ombudsman had said that police had informed him that an FPO would generally be made where the authorizing officer formed the view that a person’s possession of a firearm or ammunition would compromise public safety, and set out a number of examples of the types of situations that might give rise to the issuing of an FPO. They included outlaw motorcycle gang (OMCG) membership, persons convicted of armed robbery, murder, conspiracy to murder, serious assault and other serious violence-related matters and persons involved in firearms trafficking. None of the listed circumstances applied to the applicant.

45   Further, the New South Wales Legislature had indicated that the classes of people to whom they expected the powers to apply included persons engaged in gun crime, persons who should not have access to guns because of their criminal record, persons involved in drug use or supply, and persons who police had good reason to believe were members of organized criminal groups. None of those circumstances applied to the applicant.

46   The submissions also noted that when introducing the relevant Bill, the then Premier, the Hon. Barry O’Farrell MLA, had stated: “Nothing in this legislation should concern innocent citizens of this State. The legislation will concern those who are involved in criminal activities involving guns. This legislation will ensure that those people have no place to hide”. The applicant was clearly one of those innocent citizens and was not involved in criminal activities involving firearms. Yet an FPO had been issued against her.

52. In the present matter it is common ground that the Applicant has been involved in an incident in which he had possession of a shortened firearm and an incident concerning the unauthorised possession of an imitation firearm. It is also common ground that the Applicant has been a long term member of the Lone Wolves. These matters form the basis for the Commissioner’s view that the Applicant’s “possession of a firearm or ammunition would compromise public safety”.

53. [Not for publication]

54. Section 73 of the Firearms Act provides that the Commissioner may make an FPO if the Commissioner is of the opinion that the person is not fit, in the public interest, to have possession of a firearm. There is no legislative requirement that the person has ever held or applied for a firearms licence. It requires that an opinion is formed in regard to the personal characteristics of the person.

55. I have previously expressed concern in regard to the potential for abuse of the powers that are authorised by an FPO. My concerns echo those raised by the Ombudsman’s review that the power can be used as a roving search power used randomly on FPO subjects, without the need for a search warrant. FPO search powers are not subject to the same checks and balances associated with a search warrant.

56. Nevertheless, the potential for abuse of the powers that are authorised by an FPO should not prevent the making of an FPO if the Commissioner, or the Tribunal standing in the shoes of the Commissioner, forms the requisite opinion.

57. I appreciate that neither the Applicant nor his legal advisors are aware of the material that was presented by the Commissioner on a confidential basis in the present matter. Some of that material has not been substantiated. However, in my view there is a significant amount of reliable material which suggests that the Applicant is not fit, in the public interest, to have possession of a firearm.

58. [Not for publication]

59. I am satisfied that public interest considerations make it appropriate to issue an FPO against the Applicant.

60. That being the case, the decision to issue an FPO against the Applicant was the correct and preferable decision and it should be affirmed.

Order

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 April 2018