Davies v Commissioner of Police, NSW Police

[2007] NSWADT 195

CITATION:	Davies v Commissioner of Police, NSW Police [2007] NSWADT 195
DIVISION:	General Division
PARTIES:	APPLICANT Paul Davies RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	073086
HEARING DATES:	25 July 2007
SUBMISSIONS CLOSED:	25 July 2007
DATE OF DECISION:	29 August 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Peter Plessas v Commissioner of Police. NSW Police [2004] NSWADT 29
REPRESENTATION:	APPLICANT A Slattery, solicitor RESPONDENT W Pisani, solicitor
ORDERS:	1. The decision of the Commissioner is set aside.; 2. The decision is made that that the applicant be issued a category AB firearms licence subject to the conditions that no weapons are to be stored at the applicant’s residence; and that the applicant only be in possession of a firearm whilst carrying out an authorised task on behalf of the Mogo Zoo.

1 The applicant, Mr Davies, is employed at the Mogo Zoo (“the zoo”) and has worked at the zoo for the past 15 years. He applied to the Commissioner for a category AB firearms licence so that he can put down animals such as sheep, cows and horses donated for feeding to the animals kept at the zoo. The animals are sick and injured stock from surrounding farms. He has previously held a licence for the same purpose. That licence was revoked in February 2002.

2 The previously held licence was revoked on the basis that he was not a fit and proper person to hold a licence due to allegations that he made threatening and abusive phone calls to police. He did not pursue the review of that revocation.

3 A delegate of the Commissioner refused the current application on the ground that the issue of the licence would be contrary to the public interest and this refusal was affirmed on internal review. The applicant has applied to this Tribunal for an external review of that decision.

Issues

4 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in refusing the applicant’s firearms licence application.

Background

5 It is common ground that for several years the applicant has been involved in an on-going dispute with the local community. He has reported many allegations of threatening conduct by other people towards him and others have reported threatening conduct by him. The applicant’s premises and vehicles have also sustained damage in numerous incidents reported to Police.

6 It seems that the dispute relates to allegations of sexual assaults that were brought against the applicant. He denied all the allegations made against him and was acquitted of all charges relating to those allegations. However, it appears that some members of the local community continue to believe the allegations. The applicant remains disgruntled with what he sees as the lack of action taken by police in relation to this on-going dispute.

Applicable legislation

7 The underlying principles of the Firearms Act 1996 (“the Act”) are set out in section 3 of the Act. These include a confirmation that firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage of firearms.

8 Part 2 of the Act deals with the issue of licences and permits to possess and use firearms. The licensing provisions are contained in Division 2 of the Act and for the purposes of this application the relevant section is section 11. Section 11 (7) of the Act provides that the Commissioner of Police may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

The Commissioner’s case

9 The Commissioner relies on a brief of evidence filed in the proceedings and in particular the numerous COPS Events References, Information Reports and other reports contained within the brief. Sgt John Webber also attended the hearing, gave evidence and was subjected to cross-examination. The Commissioner relies on the reasoning set out in the Internal Review Statement of Reasons.

10 Sgt Webber’s evidence is that he was stationed at Batemans Bay police station for a number of years and that during that time he had dealt with the applicant. He identified himself as the author of two of the Information Reports included in the Commissioner’s brief of evidence.

11 The Information Report Reference Number I 20716895 was given the Short Title ‘Paul Davies Calling Police Re Personal Problems’ and the Intelligence Category ‘Harassment Public Mischief Child Sexual Abuse’. In this Report Sgt Webber wrote:

“The POI contacted Batemans Bay police station in keeping with his ongoing ritual of telling police the he is being harassed by unknown Aboriginal persons, in the Mogo and Moruya area. Mr. Davies stated that he believes he will be murdered in the near future by the broader Aboriginal community on the south coast. Mr Davies, when pressed nominated the [omitted] families as the main suspects. As these are all very large families Mr. Davies has narrowed the suspect list down to about one hundred and fifty persons. Mr Davies has no idea as to why these persons would want to harm or harass him in any way. However police believe it is due to Mr. Davies being charged with child sexual assault involving young Aboriginal boys. The matters were dismissed at Court. Mr Davies states that whenever an Aboriginal person passes him he is threatened with death or worse. Mr. Davies usually sounds intoxicated when he has called in the past and did so on this occasion. Mr. Davies was told that as he could not supply any further or more accurate information the matter could not be taken any further however a record will be made.”

12 The Information Report Reference Number I 11515561 was given the Short Title ‘Paul Davies Harassing Police via Telephone’ and the Intelligence Category ‘Harassment Public Mischief’. In this Report Sgt Webber wrote:

“At 9.35 PM on Monday 7/5/2001 the POI rang BBPS and spoke to police stating that he had been called a scumbag by an unknown "local" who was known to the POI. The POI then went into his rant about how he wrongly prosecuted and goaled by the NSW Police Service and that the NSW Police Service and all it's members are the cause of his current woes. After about 4-5 minutes of police asking the exact nature of the POI's complaint and the POI's inconsistent ramblings he hung up, with his last words being. "What's the point of telling you, you will do nothing." The POI rang back almost immediately stating "I will get you, every last one of you if it is the last thing I do". This statement was of particular concern as POI has been recently issued with a shooters licence and has access to firearms at his place of employment, the Mogo Zoo. Police are aware of the POI having dealt with him on the phone and personally on previous occasions, and recognised the voice as being that of the POI.”

13 Sgt Webber’s evidence was that the applicant was well known to the local police, as was his ongoing dispute with sections of the community. In regard to the phone call of 7/5/2001 Sgt Webber stated that he understood the words "I will get you, every last one of you if it is the last thing I do" to be a threat of violence. He would not concede that they could have been intended to indicate that the applicant would pursue legal action against the police. Sgt Webber did concede that the applicant had attempted to obtain assistance from the police in regard to action taken against him and his property and that in the past the applicant had pursued all legal avenues open to him.

14 Sgt Webber stated that he would be concerned that the applicant may misuse firearms as a means of dealing with his ongoing dispute or against the police.

15 The Commissioner concedes that the applicant has a legitimate reason for firearms in his work at the Zoo. However, the Commissioner argues that the applicant’s need for a firearms licence must be subordinate to the need to ensure public safety. Mr Pisani refers to views expressed n 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.”

16 The Commissioner contends that the zoo has been able to cope without the applicant holding a licence and therefore there are other means that can be used to perform the tasks that require the applicant to hold a firearms licence.

17 Mr Pisani referred to the objects and principles of the Act and argues that these confirm that possession and use of firearms in NSW is not a right but a privilege that is conditional upon public safety. The Commissioner is obliged to ensure that a firearms licence is not granted in any circumstances that may indicate public risk. Any information which gives rise to concerns it must be given the highest value, as public safety is the paramount consideration where firearms are concerned.

18 The evidence shows that the applicant was the subject of a threat of violence as recently as November 2006. Mr Pisani says that this is of concern because it demonstrates that feeling remains high among some members of the community. He submits that the history of the applicant’s relationships with the police and the wider community gives rise to concerns and therefore the Tribunal should err on the side of caution and affirm the Commissioner’s determination.

The Applicant’s case

19 The applicant relies on his own evidence and that of Ms Sally Padey, the proprietor of the zoo. Mr Slattery also provided written submissions in support of the applicant’s case.

20 The applicant says that he applied for a category AB firearms licence for the purpose of putting down animals to feed the animals housed at the zoo. He intends that the firearms would be stored at the zoo and that no weapons are to be stored at his residence and that he only be in possession of a firearm whilst carrying out an authorised task on behalf of the zoo. He would be given only sufficient ammunition to carry out the task and whilst in transit the weapon would not contain any ammunition and would be stored separate to any ammunition in a locked storage container on the truck. As such, he says that he would only ever be in actual possession of a firearm capable of discharging ammunition when at the location at which the animal was to be destroyed.

21 The applicant says that there is no risk that he would be in a position to use a weapon either to retaliate to a confrontation, or to provoke one.

22 The applicant denies having made the threats of violence that have been alleged. He concedes that he phoned the police as recorded in Information Report Reference Number I 11515561 and that he spoke to Sgt Webber but he asserts that his intention was, and remains, to ensure that the police are made accountable and that he will follow legal processes in doing so. He says that his remarks should not be interpreted as a threat of violence. He asserts that the history of his dealings with police support the view that he has always used legal processes to address the injustice that he feels he has suffered.

23 He says that these issues and the disputes have gone on for a long time since he was wrongly accused and convicted and subsequently acquitted. He says that over that period he has never actively pursued a course of premeditated or impulsive conduct with the intent of causing serious harm to another. He previously held a firearms licence and had access to a firearm in 2001. He says that if he were really intent on getting revenge he would have had the opportunity to do so then but nothing happened despite what was said to be going on at the time. Whenever he suffered harassment from persons in the community he resorted to the police for help and protection but prosecution is difficult because he does not know who it was that was harassing and intimidating him. The applicant says that the only threats he has made to the police are threats in relation to legal proceedings and complaints in relation to their conduct.

24 Ms Padey supports the applicant’s licence application to help the zoo provide enjoyment to the public at an affordable rate. Her evidence is that she has known the applicant for at least 30 years. She is fully aware of the troubles he has experienced in the past and does not believe the allegations against him. She says that he has worked at the zoo for the past 15 years and that during that time he has been an outstanding employee. She outlined the functions he performs for the zoo including retrieval of animals such as cows, horses and sheep donated to the zoo for the use of feeding out to some of the 40 carnivores exhibited at the zoo. When he held a firearms licence he would often use a firearm to euthanase animals.

25 Her evidence is that the current state of affairs is inconvenient because farmers are expected to shoot the animals or the zoo needs to obtain another person expressly for the purpose. The last option is expensive and the first option becomes logistically difficult and not all donors have firearms.

26 Ms Padey said that in the time that the applicant was doing that work she did not see or hear of any act of negligence or irresponsibility in relation to the handling of firearms or ammunition. She also said that the applicant has never expressed or exhibited to her any aggressive or violent behaviour to himself or others.

27 Mr Slattery submits that on the material before it, it is open to the Tribunal to conclude that the grant of the licence would not be contrary to the public interest. Equally, on the material, it is not open for the Tribunal to be satisfied that the issue of the licence to the applicant would be contrary to the public interest.

28 Mr Slattery referred to Ms Padey’s evidence and that of the applicant. He submits that it is clear that they have a close relationship and that both know that all acts of the applicant in relation to the use of the firearm would have a direct impact upon the reputation and liability of the zoo. It is unlikely that the applicant would abuse this trust given the mutual loyalty between them.

29 He further submits that the applicant has been found to be not guilty of all allegations brought against him and that he has no record of firearm or violent offences. There are no COPS reports suggesting offensive use of firearms against persons despite previous opportunity and incitement to do so.

30 Mr Slattery further submits that the likelihood of the coincidence of the applicant being in possession of a firearm capable of causing injury to another person and an incident with those in the community that harass him is remote and improbable. The Tribunal should conclude that there is virtually no risk to the safety of the public if the licence was to be issued conditional to the purpose and procedures outlined in the applicant's material. He argues that in this context "virtually no risk" means less likely than not, in the sense of it being far-fetched and fanciful.

31 He relies on the view that I expressed in Peter Plessas v Commissioner of Police. NSW Police [2004] NSWADT 29 at [36] as supporting the submission that the task of the Tribunal is to determine whether based on all the evidence, it would be contrary to the public interest for the licence to be issued. This test poses a lower evidentiary threshold than a test that requires the forming a satisfaction that granting the licence would be in the public interest. He submits that indifference to the public interest is sufficient to permit a grant.

32 In this matter several issues are in dispute. Mr Slattery submits that when there is a fact in issue, the decision maker must be satisfied to the civil standard of proof. He argues that if the decision maker is unpersuaded either way that a circumstance exists it cannot take it into account.

33 He argues that given the history and character of the applicant, the purpose of the licence and the conditions that can be attached to it and the remote or improbable unlikelihood of a firearm, legitimately possessed by the applicant under a licence (if granted) being used to shoot someone, it is not contrary to the public interest for the licence to be issued and as such the correct and preferable decision is that the licence be issued.

Findings

34 It is well established that ‘public interest’ is an inherently broad concept. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the Appeal Panel stated at [25]:

25 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. … 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. ...

35 It is also well established that this discretion is to be exercised having regard to the objects of the relevant legislation. The provisions set out in section 3 of the Act emphasise public safety.

36 There is no doubt that the relationship between the applicant and the police is an acrimonious one. It is clear from Sgt Webber’s evidence that the police held a serious concern that the applicant might resort to violence if he was unable to control his frustrations and it was in this context that he interpreted his statement that "I will get you, every last one of you if it is the last thing I do". In my view that was a reasonable interpretation given the circumstances that existed at the time.

37 Similarly, there is no doubt that the applicant has been the focus of a long running opposition from certain members of the local community. However, the evidence suggests that the number of incidents with the local community has diminished considerably over recent times and the November 2006 incident seems to have been an isolated one.

38 I found the applicant to give frank and truthful evidence. I am persuaded by his argument that he had access to a firearm in 2001 at a time when he was subjected to ongoing harassment and under considerable pressure and that there is no suggestion that he resorted to violence at that time. In fact he sought assistance from the police despite the fact that he was frustrated by what he saw as inaction on their part. I am satisfied that the passage of time has largely defused what was once a volatile situation. In my view the likelihood of the applicant resorting to violence in the current environment is considerably less than it was in 2001.

39 The evidence shows that despite the ill feeling shown towards him he continued to live in the community and was able to establish a lifestyle that minimised his contact with those who were acting against him. It is clear that a strong bond exists between the applicant and Ms Padey. I agree with Mr Slattery’s submission that the applicant is aware that his behaviour in relation to the use of firearms would have a direct impact upon the reputation and liability of the zoo and that it is unlikely that he would abuse the trust and loyalty that Ms Padey has shown him.

40 In my opinion, the Commissioner was correct in refusing to grant the applicant a firearms licence in light of the information that was available to him at the time. I make no negative comment in that regard. However, I need to decide the matter on the basis of the material before me and I have the benefit of information that was not available to the Commissioner at that time.

41 I am satisfied that the applicant’s relationship with the local community has reached a state in which there is virtually no risk that the applicant would use a firearm to settle his difference. I am also satisfied that if he were to take action in regard to the police it would be through legal channels. In the circumstances I am satisfied that the public could now be comfortable with the applicant again holding a firearms licence.

42 On the totality of the evidence I am satisfied that there is minimal risk to the public should the applicant be granted the licence that he seeks. Accordingly, it is my view that the correct and preferable decision is that the decision under review be set aside and that in its place the decision should be made that the licence is granted.

43 I note that the applicant has agreed that the licence be granted subject to the conditions that no weapons are to be stored at the applicant’s residence; and that the applicant only be in possession of a firearm whilst carrying out an authorised task on behalf of the Mogo Zoo. In my opinion these are reasonable conditions.

Orders

1. The decision of the Commissioner is set aside.

2. The decision is made that that the applicant be issued a category AB firearms licence subject to the conditions that no weapons are to be stored at the applicant’s residence; and that the applicant only be in possession of a firearm whilst carrying out an authorised task on behalf of the Mogo Zoo.