Elley v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 354

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Elley v Commissioner of Police, NSW Police Force [2017] NSWCATAD 354
Hearing dates:	14 March and 24 August 2017; Submissions by 19 September 2017.
Date of orders:	30 November 2017
Decision date:	30 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Thode, Senior Member
Decision:	The decision to revoke the Applicant's Category ABCH Firearms Licence is set aside.
Catchwords:	Firearms licence revocation – fit and proper person – public interest
Legislation Cited:	Administrative Decisions Review Act 1997 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Mewburn v The Commissioner of Police, NSW Police [2009] ADT 24;
Category:	Principal judgment
Parties:	Donald McLean Elley (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Armstrong Legal (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/00378295

reasons for decision

Background

1. Mr Elley is a 59-year-old man (the applicant) who has never been charged with a criminal offence and was, at the time of the revocation of his firearms licenses, authorised to possess and use firearms for about three years. Mr Elley lives in a rural property in Bellingen with his wife, Mrs Michelle Elley and their two children aged 18 and 30 months. He obtained a firearms licence for the purpose of recreational pistol shooting at the local Bellingen Pistol Club. He also obtained the licences to control vermin on his property which comprises a total of 200 acres.

2. On 29 June 2011 the applicant was issued with a Category ABC firearms licence (Licence) under the Firearms Act 1996 (the Act).

3. A Category H licence was added to the Licence on 18 September 2012.

4. On 13 May 2016 the respondent revoked the applicant’s licence stating that it was against the public interest.

5. On 24 June 2016 the respondent received a request for an internal review of the revocation of the Firearms Licence.

6. On 8 August 2016 the respondent’s decision was affirmed on internal review.

7. The applicant’s licence would have expired on 28 July 2016 had the Commissioner not revoked the licences. The applicant will, regardless of the decision of the Tribunal, have to lodge a fresh application for a new firearms licence.

8. On 23 August 2016 the applicant filed an application pursuant to s 75 of the Act seeking to have the delegate’s decision set aside. The application was listed for hearing on 14 March and 24 August 2017, final submissions were received on 19 September 2017.

Jurisdiction

9. The relevant principles are set out in section three 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 supply 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.

10. Section 24(2) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a firearms licence of the same kind.

11. The Act, in setting out restrictions on issue of licenses, relevantly provides at section 24(2)(d) that a licence may be revoked for any reason prescribed by the Regulation.

12. Clause 19 of the Firearms Regulation 2006 prescribes 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”.

13. The applicant alleged that the decision should be set aside as the delegate had regard to irrelevant matters; accepted evidence that had no probative value; failed to properly consider the weight to be accorded to particular evidence and failed to give appropriate weight to the applicant’s clean criminal record.

The Commissioner’s case

14. The respondent submits it is not in the public interest for the applicant to continue to hold a licence based on a range of domestic incidents concerning the applicant, as well as the applicant’s behaviour directed at Police when exercising their duties under the Act.

15. The domestic incidents relied upon by the respondent include material findings of fact as set out in the Internal Review statement of Reasons dated 8 August 2016. As there are multiple varying accounts of each incident, spanning a number of years, I make the following findings of fact based on the documentary material before me and taking into account the sworn oral testimony from Mr Elley and Mrs Elley (Der Kinderen), the applicant’s wife.

16. The applicant is 59 years of age and has never been charged with any offence.

17. On 29 December 2012 the applicant and his wife’s ex-partner, Mr Lomas, became involved in a physical altercation. In the event reference the police observed no visible injuries and noted that both the applicant and Mr Lomas had opposite versions of events and recommended that no further action be taken.

18. On 10 January 2013 the applicant was recorded as the defendant in an Interim Apprehended Domestic Violence Order (IAVO) listing David Lomas as the person who required protection. On 21 February 2013 that order was revoked.

19. As a result of the IAVO the applicant’s firearms’ licence was revoked and suspended. On the service of the suspension notice the applicant became argumentative stating “you have no right to seize my licence I am not giving it to you.” … “No I need it to shoot my pistol at the pistol club”. The police stated that Mr Elley was “erratic, unreasonable, arrogant and in the opinion of the police his ability to hold a firearms licence should be seriously considered by the Registry” (Brief of s58 documents “Brief” p7).

20. Mr Elley stated that at the time he was not aware that a private IAVO resulted in an automatic suspension of his firearms licence and that police were legally required to take the action they were taking and he did not react as calmly or dispassionately as he would have liked.

21. On 17 November 2014 Mr Elley sought assistance from Bellingen Police to recover his watch from a garage proprietor. The garage proprietor claimed the watch was held as security for a debt. The police declined to intervene. Mr Elley was dissatisfied with the conduct of police. “[Mr Elley] and his wife stated they were not happy with police and the result (sic) they would be going to Coffs Harbour Police for a better result. Police wished them the best of luck.” (Brief p10).

22. On 18 November 2014 the applicant wrote a letter of complaint regarding the actions of Bellingen police in respect of Senior Constable David Richards and Senior Constable Narelle Hall.

23. On 21 December 2014 the applicant was involved in a domestic dispute with his wife, Michelle Elley (Der Kinderen). Mrs Elley removed herself from the matrimonial property after she was told to leave. Later that day the applicant wrote a text message to Mrs Elley’s mother. In a statement dated 22 December 2014 provided to Senior Constable David Richards, the applicant’s wife recorded the text message sent to her mother, Sandra Spence: “Rick [step dad] and Sandra please advise what arrangements have been made. I don’t want things to get nasty later in the day. Please could you advise me later at the earliest”.

24. In an application for apprehended domestic violence order filed on 27 December 2014, Senior Constable David Richards recorded text message as follows: “he sent a text message to the victims (sic) mother stating she needed to leave before 6.00pm on 21.12. 2004 or things were going to get nasty.”

25. In submissions to the Tribunal it is stated that Mr Elley sent a text message stating “things were going to get ugly”.

26. At the time Mrs Elley informed police in a statement dated 22 December 2014 that the applicant had been controlling towards her, the applicant did not let her control money, her car was registered in the applicant’s name and she felt that the applicant had all the power in the relationship; the applicant removed a wall hanging, (commonly known as a dream catcher), and informed Mrs Elley that it would be returned to her when she is “leaving for good”; Mr Elley was stressed and behaving in an erratic manner and had a small axe and baseball bat around his bed and lived in fear that someone may come into the property; Mrs Elley believed that the applicant may harm her or the children. She also states that Mr Elley would lose his temper and damage property including a window and a wall.

27. On 28 December 2014 police seized the applicant’s firearms.

28. On 28 December 2014 Mr Elley reported two assaults upon him by his wife.

29. The Applicant applied for an interim apprehended violence order against his wife on 7 January 2015, for allegedly punching Mr Elley and throwing a plate at a wall, resulting in a hole in the wall.

30. On or about 4 November 2015 both IAVOs were withdrawn and the Elleys reconciled.

31. On 12 January 2015 the applicant complained about misuse of police property by police officers in Bellingen.

32. On 7 April 2015 police were called to Mr Elley’s neighbour’s property. The neighbour did not wish to speak to Mr Elley due to his “violent and litigious manner”. Mr Elley had entered his neighbour’s property to fix a fence. After Mr Elley left police spoke to the neighbour who did not wish to make a formal complaint. The relevant COPS entry states “police are of the belief that it is not in the public interest for any action to be taken against the POI” (Brief p31).

33. Mrs Elley has revoked her IAVO and provided a statutory declaration in support of Mr Elley’s application for the reinstatement of his firearms licences. She gave sworn evidence in support of her husband’s application.

34. The respondent called two police officers who gave oral evidence by telephone. Senior Constable Narelle Hall who stated that “some things in this job stick in your mind: there are two things that I remember. Mr Elley was one that stuck in my mind. I am wary of him, he made me feel alarmed.”

35. Senior Constable David Richards gave evidence to the effect that Mr Elley reacted irrationally during the watch incident and did not seem to comprehend what the officers were saying to him.

36. Mrs Elley gave evidence that she had no concerns for her safety or that of her children and denied that the applicant has ever been violent towards her. Mrs Elley did not maintain the version of events that she provided to police in support of the AVO proceedings. Indeed, she denied that they occurred in the manner they were recorded by police. None of the incidents described gave rise to a Final Apprehended Violence Order being made or criminal charges being laid. Her allegations were withdrawn and not tested in court. She expressed her regret that the accounts given to police have been “presented in a manner that over-exaggerates the extent of our marital disharmony at the time” (Brief p70). She confirms it is not in her husband’s nature to become physically violent. She has never feared for her physical safety (p71).

37. The applicant relied on the evidence of Mr Istvan Schreiner, psychologist, dated 15 June 2017. Mr Schreiner states that Mr Elley showed no observable signs of emotional or psychological difficulties. Mr Elley reported a stable upbringing in New Zealand where his father was a Protestant Pastor and his mother also worked for the church. Mr Elley works as a property developer and pastoral farmer. He reported a “burn out” and was diagnosed with Chronic Fatigue Syndrome in about 2008. His Relationship with Ms Der Kinderen was difficult to begin with, but improved after their marriage and the birth of their two children. He claimed he had never been in a physical fight and he was not a violent person by nature. He stated that the couple broke up for about 5 months but that since their reunion the relationship has improved significantly. He explained that he and Members or Bellingen Police had several disputes over the past which caused Mr Elley to complain to Coffs Harbour Police on a number of occasions. He believes that this may form part of the reason why the Bellingen officers are opposed to the reinstatement of his firearms licenses.

38. Mr Schreiner concluded that Mr Elley was not experiencing depression or anxiety. His interpersonal style was described as “warm, friendly and sympathetic.” “He is likely to be uncomfortable with interpersonal confrontation or conflict”. It was noted that because Mr Elley describes himself as a meek person, he may have some difficulty in the appropriate expression of anger. Mr Elley would have some difficulty with anger control and appropriately expressing anger but concluded that he would need no more than 6 to 8 sessions of counselling to acquire adequate knowledge that he would utilise in his everyday life in dealing with conflict. During cross-examination Mr Schreiner stated that “quite a lot of people who have poor anger control do not pose a risk. In my opinion there is no inconsistency with poor anger management and gun ownership”.

39. Mr Schreiner concluded there was no diagnosable psychological or psychiatric condition that would impact on his ability to exercise continuous of responsible control over firearms.

The Commissioner’s submissions

40. It was submitted that the psychologist’s report identified Mr Elley’s difficulty with anger control which appears consistent with the applicant’s responses to the incidents identified above. The expert recommended counselling to exercise self-control. He stated that if there was evidence of an incident of smashing windows that would cause him concern and that would affect his opinion with respect to risk to public safety as this is a demonstration of physical aggression that would influence the opinion of Mr Schreiner.

41. Notwithstanding the evidence of Mr Schreiner, the Tribunal should not be satisfied that there is virtually no risk to public safety.

42. It is submitted that the correct and preferable decision is to affirm the decision of the respondent to revoke the applicant’s licences.

43. The respondent submits that it is not in the public interest for the applicant to continue to hold the licence based on the collective domestic incidents described above, as well as the behaviour directed to Police when exercising their duties under the Act.

Meaning of Public Interest.

44. Both parties’ legal representatives have helpfully extracted recent relevant case law with respect to whether it is in the public interest for a licensee to continue to hold a licence. A discussion was set out by the Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69] and following:

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”.

45. The respondent relies on the authority of Mewburn v The Commissioner of Police, NSW Police [2009] ADT 24. In that case the respondent revoked the firearms licence of Mr Mewburn on the basis that the applicant was not a fit and proper person to hold a firearms licence. The decision was based on a number of factors set out in the Commissioner’s reasons including:

1. A conviction (quashed on appeal) for the offence of stalk/intimidate with intent to cause fear/mental harm;

2. A charge (subsequently withdrawn) of Assault Occasioning Actual Bodily Harm;

3. A consequent finding that the applicant was involved in a “volatile relationship” with his defacto wife;

4. A charge for doing a burn out in a car; and

5. A history of holding a Firearms licence without any reports of misuse of firearms;

46. The Commissioner’s delegate, in carrying out the internal review, was not satisfied that there was virtually no risk associated with granting access to firearms and on that basis refused the application.

47. In that decision it was noted that Mr Mewburn had a series of convictions, or pleaded guilty to, offences as serious as Dangerous Driving, Assault Occasioning Actual Bodily Harm, in respect of which he was placed on a good behaviour bond, and contravening an Apprehended Violence Order (which was dismissed pursuant to section 10 of the Crimes (Sentencing Procedure Act). Ultimately the Tribunal accepted Mr Mewburn’s evidence that he was capable of removing himself from difficult domestic situations involving his neighbours, and agreed that the mere fact of these offences should not lead to a conclusion that Mr Mewburn was not a fit and proper person.

48. The Tribunal concluded that whilst regard can be had to various domestic incidents and exchanges with Police, the Tribunal has the capacity and is entitled to look behind these incidents. It was open to the Tribunal to take all evidence into account, and in doing so the Tribunal found no suggestion that any of the incidents to which the Commissioner referred involved the mishandling of firearms.

Consideration

49. In coming to my conclusion that the decision under review should be set aside I have had regard to all evidence tendered, as well as the sworn evidence of Mr and Mrs Elley, Senior Constables Richards and Hall. The evidence before the Tribunal confirms that the applicant has not been violent, has not demonstrated a propensity for violence, and has never been charged with a criminal offence.

50. The revocation of his firearms licences followed upon reports of Mr Lomas that he had been assaulted. The IAVO was withdrawn and police considered it was not necessary to pursue the matter further. Victim and alleged perpetrator had opposing version of events.

51. The IAVO concerning Mrs Elley was withdrawn and Mrs Elley states that the incidents described in the initial police statement were exaggerated; at no time did she fear for her safety or that of her children. Although the applicant did send a text message “things could get nasty” Mrs Elley had not, before and after the message, witnessed her husband in a physical altercation.

52. Notwithstanding the lengthy documentation tendered by the respondent, there was no evidence in the events giving rise to a finding that Mr Elley had indeed been violent, or, that he had at any time misused firearms, or had threatened to use a firearm, or that he attempted to prevent police from seizing firearms during the performance of their duty.

53. His behaviour towards police can at best be described as argumentative and at worst, disrespectful. It has, however, not given rise to charges being laid. I cannot be satisfied that the cumulative incidents describing the applicant’s interaction with police would amount to a finding that the respondent has demonstrated any actual increased risk to public safety in the circumstances. Following the approach in JM Frost in AMJ Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider these to be factors that weigh in the applicant’s favour.

54. The respondent submitted that the applicant behaved erratically and slept with a cricket bat under his bed. He denied sleeping with an axe. The applicant explained that he does so as his farm-house has many different entries, and in light of its remote rural location he does keep a cricket bat by his bedside in case of intrusion. I accept this as a reasonable explanation. There is no allegation that these are prohibited weapons, and the psychologist has confirmed that Mr Elley has no heightened paranoia and is not likely to harm himself or others.

55. The respondent has sought to discredit the applicant’s psychiatric report in cross-examination. Mr Schreiner was asked to assume that Mr Elley had broken a glass window during a violent altercation with his wife. It was alleged that the psychologist was not given a full history of violent events, and that the decision of the delegate should be affirmed because Mr Elley may have probable difficulty controlling anger. First, I reject the contention that Mr Elley withheld a history of violent episodes from the expert psychologist. Mr Schreiner was provided with a copy of the COPS information dated between 28 December 2012 and 6 April 2015, and all events relied upon by the respondent were before the expert. Secondly, I do not find the window episode established. Mr Elley denied breaking a window in anger, (as opposed to by accident), and the only other evidence supporting the contention is contained in the hearsay evidence of Mr Elley’s mother-in-law. I accept Mr Elley’s evidence as truthful. I accept the report of Mr Schreiner as evidence of the applicant’s mental health, in the context of a firearms licence, and as evidence to support a finding that the applicant’s mental health does not pose any risk to public safety.

56. I accept the applicant’s evidence that he has not been violent and that he has not in any way contravened firearms legislation in respect of the safe handling and storage of a firearm. On all of the evidence I find that he is a fit and proper person within the meaning of the Act.

57. I am reasonably satisfied, based on the public interest grounds, that there is no reason for the applicant not to hold a firearms licence, should he elect to reapply for such a licence.

58. In regard to the licence, the correct and preferable decision is to set aside the decision to revoke the Applicant’s category ABCH licence. If the licence has expired, and it is necessary for the Applicant to make a fresh application, I see no reason why he should not be able to hold the licence.

Orders

1. The decision to revoke the Applicant's Category ABCH Firearms Licence is set aside.

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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

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: 30 November 2017