French v Commissioner of Police, New South Wales Police Force
[2013] NSWADT 221
•10 October 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221 Hearing dates: 1 October 2013 Decision date: 10 October 2013 Jurisdiction: General Division Before: GD Walker, Judicial Member Decision: The decision under review is affirmed
Catchwords: Firearms licence -discretion to revoke-prohibited articles -silencers-public safety Legislation Cited: Firearms Act 1996; Firearms Regulation 2006; Weapons Prohibition Act 1998 Cases Cited: Lynch v Commissioner of Police [2006] NSWADTAP 43 Vella v Commissioner of Police [2003] NSWADT 91; WN v Commissioner of Police [2007] NSWADT 71. Category: Principal judgment Parties: Brian Robert French (applicant)
Commissioner of Police, New South Wales (Respondent)Representation: Applicant in person
File Number(s): 133156
reasons for decision
Background
The applicant has held a firearms licence for most of the time since 1988. He was issued with a class AB firearms licence, No. 406553975, on 27 July 1998. The licence has been suspended on three occasions since 1998 as the applicant was the subject of interim apprehended violence orders (AVOs). The suspensions were lifted when the interim AVOs expired or were revoked.
In 2001, the applicant was the subject of a full AVO during one period of suspension. The AVO was revoked and the suspension lifted. At that time the applicant was employed as a teacher, but it does not appear that he is still active in that profession.
On 29 May 2011, police officers attended at the applicant's residential address to conduct a safe storage inspection and assess the applicant's mental health. This followed an anonymous communication received in relation to the applicant. The officers found nothing untoward.
On 1 August 2012, police again attended at the applicant's residence after receiving further anonymous information that he was in possession of a silencer or silencers. The attending police located two silencers at the premises. The applicant did not hold the required permit authorizing him to possess or use such items.
The applicant's firearms licence was suspended and he was charged with two counts of possessing or using a prohibited weapon without a permit. The charges were heard at Taree Local Court on 16 October 2012 and the applicant pleaded guilty. The offences were found to have been proved and were dismissed conditionally on the applicant entering into a good behaviour bond for 12 months. The applicant's firearms licence was revoked on 7 January 2013.
The Firearms Act 1996 s 24 (2) provides as follows:
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:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(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
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
In his letter dated 22 March 2013 requesting an internal review of the revocation decision, the applicant stated that he uses his firearms to shoot in the bush as a form of stress relief as he suffers from a diagnosed general anxiety disorder. He produced no evidence to the review supporting that diagnosis or condition or demonstrating that using a rifle is a treatment for the symptoms of that disorder. In the internal review, the delegate noted that a person with a high level of interest in, and experience of, shooting and weapons should keep pace with the relevant legislation. The applicant had been found in possession of two prohibited devices that were not stored in accordance with legal requirements, and should have known that those acts were unlawful. The respondent's delegate therefore determined on 15 April 2013 that the applicant's licence should be revoked in the public interest.
On 17 May 2013 the applicant applied to this tribunal for a review of the internal review decision of 15 April 2013 (although on the application form he inadvertently gave the decision date as "15/3/13". Until the hearing the matter proceeded on that basis, which was incorrect, as the tribunal reviews the original decision, not the result of an internal review. The application was accordingly amended by consent in the appropriate manner at the hearing.
The issue in this matter is therefore whether the correct or preferable decision is that the applicant's licence be revoked under s 23 (2) of the Firearms Act.
Applicant's evidence
In his oral evidence the applicant stated that the AVOs were all taken out by Debra J..., his then de facto, between 2000 and 2002. She was a serious alcoholic and took out the first AVOs against the applicant while they were living in Sydney. They then moved to Taree, where her parents lived, in the hope of helping her to "dry out", but matters continued to deteriorate. The more he tried to help her to overcome her problem, the more she drank, as she seemed to view his efforts as belittling her. She had a major drink-driving accident with a blood-alcohol reading of .33, following which she was released into his custody.
All the AVOs were revoked without a hearing, except for the last one, which was heard at Taree Local Court. Magistrate Hodgson dismissed the assault charge and revoked the AVO, declaring that Debra's evidence was totally unreliable. He added, according to the applicant, that the applicant should leave the relationship before it killed him (no transcript of his Honour's remarks was in evidence, but the applicant's account was not challenged).
In relation to charges for possession of silencers, Mr French said he had spent 15 years in the navy, the last two and a half years being in the naval police. He had served in the Vietnam war aboard the destroyer Vendetta and the carrier Sydney. In his duties aboard the Vendetta he had for 8 months occupied a post adjacent to a dual 4.5 turret which was used for shelling enemy positions. This had caused him to suffer from tinnitus caused by the sound of loud gunfire, which was made worse by high blood pressure and generalized anxiety disorder.
He had taken up shooting as a stress release as he was averse to taking drugs of any kind, whether prescribed or unlawful, and including alcohol. He had experimented with various kinds of ammunition to reduce the noise involved, trying low velocity rounds, short cartridges and even shorter caps. When he was feeling tense he would take out three or four boxes of cartridges for target shooting or hunting, finding that it relieved his stress and eased his blood pressure. Once or twice he had used a silencer when shooting, but not while in the company of other shooters. After a couple of attempts he had put the silencers aside as he had not found them to be particularly effective. His tinnitus had not improved and he had since learned that once you have that condition, it is too late to do anything about it.
He had pleaded guilty to the silencer charges, but had not used the devices with any wrongful intent. At the time he obtained them he "couldn't have cared less" whether they were lawful or not, as he was in an acute state of distress, having tried unsuccessfully to obtain help, and feeling highly frustrated. He admitted that he had unwisely said during that period "I ought to shoot Julia Gillard", but pointed out that the previous evening Ms Gillard had told a television interviewer of the "murderous rages" she experienced while Prime Minister, but she had not murdered anybody. Such remarks were not to be taken seriously, however misguided they may be.
In cross-examination the applicant said he could not recall when his tinnitus had been diagnosed or whether it had been Dr Koller who had performed the diagnosis. But he did not think it was before the charges. He avoided loud music, parties and alcohol and was now involved in competitive archery. He pointed out that everything else that makes a noise has a silencer, and produced some pads that are used to muffle the sound of a bowshot in archery.
In obtaining the silencers he had not intended to do wrong but was engaged in an attempt at self-treatment, though he was guilty as charged.
The applicant produced two references (part exhibit A1), one from Mr Robert T Wilson, which praised his personal qualities and referred to his wide range of skills, including first aid and counselling. In particular, he had greatly helped Mr Wilson through a very difficult period the previous year after his wife had died. He is a man or sober habits, is reliable and completely trustworthy. He is a valued member of the archery association and of the community in general.
The other reference was from Dr Karl Koller, psychiatrist, who stated that Mr French suffered some life-threatening stressors during the Vietnam war and, because of excessive noise exposure, suffers a serious distracting tinnitus, which would be worsened by loud noise exposures. "Thus he uses a silencer when firing a weapon. It is a reasonable decision" (Dr Koller was obviously unaware of the prohibition of such devices). He had been attending Mr French since 2008 and had no doubts about his responsibility to handle a firearm. He presented no risk in the handling of prescribed weapons.
Respondent's evidence
The respondent relied on the s 58 documents (exhibit R1) and adduced oral evidence from plainclothes Senior Constable J. David Wilson, who adopted his statement dated 17 June 2013 (part exhibit R2). In it he related, inter alia, that he has extensive experience with firearms and their use over 25 years. He was aware of the necessary protective measures for hearing and eye protection while using firearms, but had never known of, owned or had to modify a firearm that required in its sound to be reduced to meet a medical need.
All shooters were aware that ear protection in the form of earplugs and electronic and passive ear protectors was available and should be worn to reduce sound while shooting. The use of a silencer would only reduce the noise of a firearm being used by the owner. On a range, all firearms would have to have silencers for that method of sound reduction to be effective.
Senior Constable Wilson said he had attended at the applicant's residence and had located the silencers in his possession. He had no doubt that the applicant knew it was illegal to possess them as he was initially evasive and only after probing had admitted he might have "one". Silencers are dangerous as they can be used to commit crimes with less chance of detection . Even if Mr French had not intended to use them in that way, they could have been stolen and used to commit crime.
In cross-examination the witness said he was unaware of the Sporting Shooters' Association campaign to have silencers legalized as a way of reducing hearing damage. He did not agree with the applicant's claim to have purchased the silencers in Sydney. He had seen the packaging and believed that it indicated an overseas origin, possibly through an online purchase.
Applicant's submissions
The applicant said that his problems had been brought on by what he had gone through with the Veterans' Review Board and the federal Administrative Appeals Tribunal. The psychiatrist had said that he presented no risk to the public by handling firearms and he had a strongly supportive reference from Mr Wilson. He had cooperated with the police in relation to the charges. The silencers had been purchased in Sydney.
He had grown up in Tasmania where, he thought, silencers had been lawful at the time. He had lost track of the law in New South Wales in that regard. He had sought help for his problems, but being unable to obtain a satisfactory solution had tried to help himself.
Consideration
At the hearing the respondent did not rely on the AVOs issued against the applicant between 2000 and 2002, saying that they had arisen a long time ago and nothing similar had occurred since. Further, the respondent did not challenge the applicant's evidence about the circumstances in which they had been obtained or the nature and extent of Debra's behavioural problems. Otherwise, the AVOs would have been a matter of serious concern in this application.
The respondent in support of the decision under review relied in part on s 24(2)(a) of the Firearms Act, which is to be read with a number of other provisions of that Act, in particular those providing that if a person applies for a firearms licence, the respondent is bound to refuse the application.
Section 11(5)(d) of the act provides that a licence must not be issued to a person who is subject to a good behaviour bond in relation to an offence prescribed by the regulations. Going then to the regulations, cl 5(2)(a) states that the prescribed offences include those referred to in cl 5(1)(a), namely "An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction...."
At the time his licence was revoked, the applicant was subject to a 12 month good behaviour bond in relation to the offence of possessing or using a prohibited weapon without a permit, under s 7 of the Weapons Prohibition Act 1998.
Section 4(1) of that Act, the definition section, states that "prohibited weapon means anything described in Schedule 1". The schedule lists several categories of weapons and then concludes with a number of "Miscellaneous articles", including anti-ballistic vests, handcuffs and, in cl 4(3), silencers.
As the respondent very properly concedes, the Commissioner has a discretion whether or not to revoke a licence under s 24(2)(a), whereas s 11(5)(d) leaves no such discretion in relation to refusing an application for the issue of a new licence.
While that may seem to be an anomaly, that is not necessarily so. In the case of a new applicant, the Firearms Registry may have no experience with the applicant as a licence holder and is relying on necessarily limited information. On the other hand, if a person has, for example, held a licence for 20 years and had an impeccable record until committing a single prescribed offence, the Commissioner might consider it appropriate not to revoke but to deal with the matter in a different manner, such as by a warning coupled with a special condition inserted in the licence.
The tribunal has held, however, that the discretion should be exercised in favour of the licensee's retaining the licence only in special circumstances: WN v Commissioner of Police [2007] NSWADT 71 at [28]-[30].
The applicant did not explicitly set out the special circumstances that he saw as applying in this case, but one can infer from his other submissions (exhibit R1, tab 6b) what he would consider such circumstances to be.
He contended that the offence was brought on by his generalized anxiety disorder due to war service, to his tinnitus from the same cause and by stress brought about by his interactions with the Veterans' Review Board and the Administrative Appeals Tribunal. He had sought relief by going out into the bush and shooting with a silencer, which he admitted to be wrongful.
While it is possible that the challenge of target shooting and vermin control with a rifle could bring a sense of achievement that might reduce stress, that in no way excuses his breach of firearms legislation. As S/Const. Wilson's evidence showed, and the applicant appeared to concede, there were lawful methods of reducing gunfire noise and the risk of hearing damage that he could have used, and indeed they would probably have been more effective than a silencer.
In his evidence the applicant said that because of his problems at the time, he "couldn't have cared less" about the legality of the silencer, but his conduct and statements when approached by S/Const. Wilson point to a more conscious and knowing breach. Again, he did not say how he had procured the silencers except to claim that he had purchased them in Sydney, but he would have had to obtain them by some surreptitious means that would have required a level of specific intent on his part.
The applicant said in his submissions that he had grown up in Tasmania where, he thought, silencers were lawful and he had simply "not kept up with the law in New South Wales". It may well be that in Tasmania, during the applicant's early years as a shooter, silencers were lawful, as they were used without restriction in a number of States before 1998. They are still unrestricted in New Zealand, the rationale apparently being that they make it possible to shoot rabbits without frightening the sheep. But they have been prohibited in New South Wales since long before 1998 and it is impossible to believe that the applicant, active as he was in shooters' organizations, was unaware of that fact. In any event, ignorance of the law is of course no excuse.
Dr Koller's opinion that his patient's use of a silencer was "a reasonable decision" cannot, of course, stand against the clear prohibition in the legislation.
The applicant also relied on his 55 years of experience in firearms use with no previous charges, convictions or accidents, and to his supportive reference from Mr R.T. Wilson. While his prior good record carries substantial weight, it is severely marred by his knowing violation of specific firearms provisions relating to prohibited articles and safe storage. Further, in these circumstances the fact that the good behaviour bond will in the normal course of events expire within two weeks is not of substantial significance.
In support of the Commissioner's revocation decision the respondent also relies on s 24(2)(d) of the Firearms Act and on cl 19 of the Firearms Regulation 2006, which provides that the respondent may revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence. He submits that a silencer is classified as a prohibited weapon under cl 4(3) of Schedule 1 of the Weapons Prohibition Act 1998. Lawful possession or use of a silencer requires a prohibited weapon permit, which will be granted only if the applicant has a genuine reason.
The reasons that are accepted as genuine for the purposes of permit applications are very limited. As set out in the police fact sheet on silencers (part exhibit R2), they include requirements as a prohibited weapons dealer, a theatrical armourer or museum operator or an occupational or business purpose such as the control of feral animals. The fact sheet further states that "The applicant must establish that there is a genuine requirement to muffle the noise of gunshot, either from a public safety perspective, a personal perspective or where the situation requires that other animals in the vicinity are not disturbed by the sound of gunshot". The persons who could establish a genuine reason would include persons required by their employment to control feral animals or vermin or persons applying on behalf of a registered pest control business.
S/Const. Wilson's statement declares that he has never known of a firearm that requires its sound to be reduced to meet a medical need. He considers that silencers are dangerous and can be used to commit crimes with the less chance of detection. Even if the applicant did not intend to use them in that way, they could have been stolen and used to commit crime. The statement does not, however, assert that the officer knows of any instances in which silencers have actually been used for criminal purposes.
The respondent submits that the applicant's actions of possessing and using the silencers and not storing them in the correct manner constitute a real risk to public safety should the applicant be permitted to hold a firearms licence.
In his earlier submissions the applicant argued that silencers (these days more accurately called "suppressors", as they muffle rather than eliminate the sound, but I use the statutory term in these reasons) are not a weapon but an addition to a weapon. In a sense that is true, as they are listed in Schedule 1 of the Weapons Prohibition Act under the heading "Miscellaneous articles", rather than under "Miscellaneous weapons" or some other heading. Further, s 4(1) of that Act defines "prohibited weapon" as meaning " anything described in Schedule 1", while s 5 states that the regulations may amend Schedule 1 "by adding the name or description of anything". The use of the word "anything" presumably means anything at all, whether a weapon in actual fact or not. By contrast, a firearm to which a silencer is attached is undoubtedly a weapon and is specifically prohibited as such by cl 10 of Schedule 1 of the Firearms Act.
But the fact that a silencer on its own may not strictly speaking be a weapon is of no legal consequence, as the Weapons Prohibition Act treats such items in the same way in all respects as the other weapons and articles listed in Schedule 1.
In Lynch v Commissioner of Police [2006] NSWADTAP 43 the tribunal stressed the overriding public interest in the need to ensure public safety in firearm use and possession. Thus the principal issue in considering public safety is whether there is a risk to the safety of the public if the applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91. In the present case, and despite the applicant's otherwise excellent record, I consider that his knowing disregard of specific firearms legislation provisions, including those relating to safe storage, constitutes a public safety risk.
Although I do not necessarily suggest that the applicant could never again be favourably considered for a firearms licence, I consider that his still current good behaviour bond on a prescribed firearms charge, the lack of sufficient special circumstances justifying exercise of the discretion in his favour and his wilful disregard of safe storage requirements disqualify him from currently holding a firearms licence.
The decision under review is therefore affirmed.
Decision last updated: 10 October 2013
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