Hall and Commissioner Of Police - [2005] WASAT 209

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: HALL and COMMISSIONER OF POLICE [2005] WASAT 209

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 18 & 19 JULY 2005

DELIVERED : 16 AUGUST 2005

FILE NO/S: CC 42000 of 2004

BETWEEN: JAMES EDWARD HALL
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Revocation of firearm licence Review of decision Convicted of offences relating to discharge of a firearm and wilful and unlawful damage to property in Queensland in 1996 Whether subsequent additions to licence obtained by fraud or deception Non-disclosure of Queensland convictions

Legislation:

Firearm Regulations 1974 (WA), reg 4, reg 11A, reg 23

Firearms Act 1973 (WA), s 11(a), s 11(2), s 11(3), s 11(6), s 20(1)(a)(iii), s 20(1)(i), s 22
State Administrative Tribunal Act 2004 (WA), s 27

Weapons Act 1990 (Qld)

Result:

Decision under review affirmed

Category: B

Representation:

Counsel:

Applicant: Mr S O'Sullivan
Respondent: Sgt M Lynch

Solicitors:

Applicant: Gibson & Gibson
Respondent: Self-represented

Case(s) referred to in decision(s):

Browne v Dunn (1894) 6 R 67
Reid v Kerr [1974] 9 SASR 367

Case(s) also cited:

Re: Jones: Exparte the Commissioner of Police [1999] WASCA 246

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

Mr James Hall (the applicant) applied for a review of a decision made on 2 April 2004 on behalf of the Commissioner of Police to revoke the applicant's firearm licence in respect of four particular firearms. The right to apply to have the decision reviewed arises under s 22 of the Firearms Act 1973 (WA) (the Act).
The reasons for the revocation were the applicant's convictions in Queensland for firearm offences; the 10 year disqualification from holding a firearm licence in Queensland as of 1996; and the applicant's failure to declare on all WA firearm applications, the Queensland disqualification.
The Tribunal considered that the applicant's conduct in not disclosing the Queensland offences when applying for additional firearms to be added to his firearm licence was deliberate and resulted in the grant of all but one of such applications by fraud and deception. Such conduct, together with the nature of the offences committed in Queensland and other incidents, showed a history of a tendency towards violent behaviour involving the use of firearms such that the Tribunal concluded that the applicant is not a fit and proper person to hold a firearm licence.

The application

The application is for review of a decision on behalf of the Commissioner of Police revoking the applicant's firearm licence as communicated by a letter dated 2 April 2004 signed by Superintendent M Emmanuel, the Superintendent, East Metropolitan District, of the Western Australia Police . The delegated authority to act on behalf of the Commissioner was not placed in issue.
The reasons stated in the said letter for the revocation were that:
"You are no longer considered a fit and proper person to hold a firearm licence due to:
1.Convictions in Queensland for firearm offences
2.Your 10 year disqualification to hold a firearms licence in Queensland as of 1996
3.Your failure to declare on all WA firearm applications your Queensland based disqualification …"
The firearm licence relates to four firearms which are fully described in the revocation letter.

Background

The applicant first applied for a firearm licence in 1991. The licence was for a .22 calibre "Savage" Repeater Rifle (the rifle), bearing serial number D718495.
On 14 May 1996, the applicant pleaded guilty to charges in the Magistrates Court at Goondiwindi, in the State of Queensland, to charges relating to the wilful and unlawful damage of a motor vehicle, the unlawful possession of a .22 calibre rifle, without reasonable excuse carrying a weapon, namely a .22 calibre rifle, exposed to view in a public place and without reasonable excuse discharging that weapon in a public place. The applicant was convicted and fined the sum of $1000, ordered to pay compensation of $1317, and was disqualified from holding or obtaining a licence under the Weapons Act 1990 (Qld) for a period of 10 years from 14 May 1996.
At the time of the committing of the 1996 offences, the applicant was a truck driver operating between Western Australia and Queensland.
After committing the offences, the applicant left the rifle with a friend, said to be Mr Richard Cooper, in Queensland. He left his trucking rig behind in Queensland. The applicant's evidence was that somebody wanted to buy it. He was apprehended by the police asleep in the back of a friend's truck en route to Western Australia.
Since 1996, the applicant has had no contact with Mr Richard Cooper. He made no attempt at any time to have the firearm returned to him in Western Australia.
The rifle is currently in the possession of a Mr Matthew Cedric Russell, of 12 Boodera Street, Oxley in the State of Queensland. Mr Russell holds a current firearm licence for the rifle which he purchased from the Wyatt Earp Gun Shop at Browns Plains in Queensland. Mr Russell and the applicant do not know each other.
In November 1998, the applicant applied to have a further firearm added to his firearm licence. The applicant answered "no" to a question posed as part of the licence application, whether he had ever been disqualified anywhere from holding a licence for a firearm. In answer to a question as to whether he had been convicted of any offence anywhere, including traffic, he answered in the affirmative and gave details "various traffic (speeding)".
In February 2002, the applicant applied to have a further firearm added to his firearm licence. He again represented by answer to the questions in the application form that he had not been disqualified anywhere from holding a licence for a firearm. On this occasion, in answer to the question of whether he had been convicted of any offence anywhere, including traffic, he disclosed speeding infringements and the convictions for the possession of an unlicenced firearm in 1987.
In August 2002, the applicant applied for yet a further firearm to be added to his licence. The answers and disclosures were the same as in respect of the application made earlier that year.
Yet a further application was made to add another firearm licence in June 2003. Again, the applicant did not disclose having ever been disqualified from holding a licence for a firearm. The form had been changed, and in relation to the question concerning whether he had been convicted of any offences anywhere, including traffic, he answered in the affirmative, but there was now no space provided in the form for any details to be provided. Nevertheless, each of the application forms, including this particular one, contained a section to be completed by the attending officer, which set out a checklist of items to be investigated. One such item was the checking of criminal/traffic records.
The applicant was aware, and it was the case, that at all relevant times there was no common computer data‑base used by the police in the various states, so that, a criminal record check would not in itself disclose convictions for an offence in another state.
One other matter which is reflected in each form, was a "N.E.P.I." check. None of the witnesses were aware what these letters stood for, but the check is one in which convictions in other states should be identified. The N.E.P.I. check was included in the checklist in all but the first of the above applications. In each form in which the N.E.P.I. check was included, except the last form the attending officer completed the form to indicate that the N.E.P.I. check had been carried out.
In relation to the last licence application, the attending officer did not complete the form to show whether the N.E.P.I. check had been carried out, but it can be inferred that he did so. The inference can be made because the applicant was asked to attend at the Forrestfield Police Station, where he had lodged the application, in order to make a statement concerning the Queensland offences. He did so by way of a statement dated 8 July 2003.
All of the above applications were successful, the last application being approved on 29 August 2003.
On 9 March 2004, police attended at the applicant's home following a call by the applicant's wife, Mrs Dianne Ngaire Hall, to the police emergency number. When the police arrived, Mrs Hall had left the house but she later informed the police of fears for her safety. The police returned to the applicant's home and took possession of all of the firearms covered by the firearm licence, except of course the rifle which had been left in Queensland.
When questioned about the missing rifle, the applicant informed the police that he had thrown it into a river because it was defective and he had difficulty in obtaining spare parts. Constable Dyson, who was the recipient of this information, caused inquiries to be made as a result of which he became aware of the Queensland convictions. He also obtained the statement made by the applicant on 8 July 2003 concerning the Queensland offences which stated that, inter alia:
"4.Currently I have four firearms on this licence. All four firearms a [sic] kept in my house in approved gun cabinet."
In a report dated 9 March 2004, Constable Dyson recommended that the applicant's firearms licence be cancelled as:
"[H]e is not a 'fit and proper person' because:
1)The offence in Queensland with his weapons licence being disqualified for 10 years in that state. [sic]
2)The making of a false declaration on his firearms application [sic] since the above incident and also a signed statement stating he is possession of that firearm even though he states isn't. Whereabouts of this firearm unknown at the present time.
3)Fears and concerns of his family and the current domestic situation."
It was this report which led directly to the decision made by Superintendent Emmanuel to revoke the applicant's firearm licence.

The hearing

The application was heard on 18 and 19 July 2005.
All of the documents attached to the parties respective statement of issues, facts and contention filed in accordance with earlier directions made by the Tribunal, were accepted into evidence, subject to any objection which either party might raise in relation to any particular documents.
Included within those documents were statements by the applicants and a number of police witnesses as well as the applicant's wife, Mrs Hall.
The applicant gave oral evidence in support of the application. The respondent called three witnesses in support of its case, namely, Mrs Hall, Constable David Charles Dyson and Superintendent Michael Emmanuel.

Questions for determination

The application raises the following questions for determination.
1.Did the applicant set out to conceal the Queensland convictions?
2.If so, did the applicant obtain a firearm licence or licences by fraud or deception?
3.If so, do the circumstances of that fraud or deception and/or any history of a tendency towards violent behaviour, result in a conclusion that the applicant is not a fit and proper person to hold a firearm licence?

1. Did the applicant set out to conceal the Queensland convictions?

The applicant demonstrated in evidence that he was aware of his obligation to store firearms licenced to him in a locked cabinet. Regulation 11A(2) of the Firearms Regulations 1974 (WA) (the Firearms Regulations) provides to this effect and that a locked cabinet or container must meet particular specifications.
It was common cause that the applicant had renewed the firearm licence covering the rifle on at least one occasion prior to the first application to add an additional firearm to the licence made in November 1998.
As already outlined above, the applicant at no time made any arrangements for the rifle to be returned to him in Western Australia. No attempt was made to maintain contact with the person with whom the applicant testified the rifle had been left, Mr Richard Cooper. The circumstances in which the rifle came to be sold to Mr Russell were unexplained.
The applicant testified that when he signed the written statement made on 8 July 2003, the interviewing police officer, since identified as David Pert, had asked him questions from which the statement had been prepared. The applicant stated that Officer Pert placed the interpretation on what he had stated, to record in paragraph four of the written statement, that the applicant currently had the four firearms on the licence and that they were all kept at his house in an approved gun cabinet. Officer Pert was not called to contradict this evidence, although it was challenged in cross examination.
The applicant testified that he had not endeavoured to conceal the Queensland convictions at any time. His testimony was that when making the 1998 application for the addition of a further firearm to his licence, he had made an enquiry of a police officer as to whether the WA Police were interested in any problem in another State. The response, according to the applicant, was that other police forces were on a different database and WA Police were only concerned with matters occurring within Western Australia.
In the following year when the police sought to take possession of the applicant's firearms, as a result of the fears expressed by Mrs Hall concerning her safety, the applicant stated he had thrown the firearm into a river. This statement was untrue, but that was established only as a result of further inquiries made by the police. The obvious question is why did the applicant not tell the police what he had done with the rifle? He had, after all, disclosed the Queensland convictions the previous year when he was asked to attend at the Forrestfield Police Station to make a statement concerning that subject.
That in turn leads to the question, why did the applicant continue to renew the licence in respect of the rifle?
I consider that the applicant's evidence in relation to the reason why he did not earlier disclose the Queensland convictions is improbable. The 1998 application form required that a N.E.P.I. check be carried out. The form was completed by the attending officer to show that the N.E.P.I. check was carried out. Whether that was the case or not, given that the form required a check to be made with other States concerning convictions outside Western Australia, it is unlikely that the applicant would have been given the advice that the WA Police were not concerned about any problems which might have occurred outside Western Australia. Further, the language in the form used is unequivocal, is highlighted by the use of capitals and bold print and required particulars to be given of any convictions "of ANY OFFENCE ANYWHERE". In the above circumstances, it is not credible that a police officer would give the advice contended for by the applicant. I am fortified by my conclusions regarding the improbability of this evidence by the applicant's conduct in renewing the licence in respect of the rifle, and continuing to do so, in circumstances in which no attempt was ever made for the rifle to be returned to him. It is obvious that if the applicant had not sought to renew the licence, questions would have been raised as to the whereabouts of the rifle. Even when he was required to give a statement to the police in July 2003 about the Queensland convictions, he did not volunteer that the rifle was not in his possession. To do so would have highlighted his duplicity in this regard, and he obviously could not have been sure as to the whereabouts of the rifle at that time. His conduct in relation to his safekeeping of the rifle alone could have had serious consequences for him.
In the absence of evidence from Officer Pert, I make no finding as to whether the applicant actually said that all four firearms licenced to him were kept at his house in an approved gun cabinet, but that is of little consequence. No matter how any question was posed by Officer Pert on this issue, it is inconceivable that the applicant would not have realised that a false impression would be given by his answer if he did not disclose what he had done with the rifle. In addition, he read and then signed the statement recording that all four firearms were kept at his house in an approved gun cabinet.
I accordingly conclude that the applicant, by the above conduct set out to conceal the Queensland convictions.

2. Did the applicant obtain a firearm licence or licences by fraud or deception?

The relevance of the question is that by virtue of s 20(1)(i) of the Act, one of the grounds upon which the Commissioner of Police is entitled to a revoke a licence is where the Commissioner is satisfied that the holder of the licence has obtained it by fraud or deception.
The Butterworths Australian Legal Dictionary contains the following definitions.
"Deception Misleading by deliberate misrepresentation; intentionally inducing in another a state of mind which the offender knows does not accord with fact … the misrepresentation has been made fraudulently (that is with knowledge of its falsity), recklessly (without an honest belief in its truth), or carelessly (of whether it is true or false).
Fraud An intentional dishonest act of omission done with the purpose of deceiving." Nygh P; Butt P, (ed) "Butterworths Australian Legal Dictionary" Lexis Nexis Butterworths, Chatswood, 2003.
In each of the four applications for additional firearms to be added to the applicant's firearm licence, the applicant failed to disclose that he had been disqualified "anywhere from holding a licence for a Firearm". In view of my finding that it is improbable that the applicant received the advice that it was not necessary to disclose any problems experienced outside of Western Australia, it follows that the applicant must have been aware that he had answered this particular question incorrectly. Further, in view of my findings that the applicant set about to conceal the Queensland convictions from police, it also follows that he made the misrepresentations deliberately with the intention of deceiving the police into a belief that the applicant was not disqualified from holding a firearm licence elsewhere.
Finally, in relation to each of such applications, except the last made in June 2003, the applicant failed to answer correctly the question whether he had been convicted of any offence anywhere by not providing particulars of the Queensland convictions. On the same reasoning, that misrepresentation of the true position was made intentionally with the purpose of deceiving the police into believing that the applicant had not committed any offence other than those disclosed within Western Australia. No such finding can be made in respect of the application made in June 2003, because that form contained no provision for details of any offence to be provided, the applicant had answered the question correctly by showing that he had been convicted of offences by ticking the appropriate box, and by his statement to police in July 2003 he disclosed the offences.
Although the police were required to carry out a N.E.P.I check which should have disclosed the convictions, there is no suggestion that the applicant knew this. It can be inferred that the checks, if carried out, did not disclose the convictions because there is no record of any knowledge by the police of these convictions prior to 2003. If this had been known, it is improbable that a statement would not have been required of the applicant, as occurred in 2003, particularly having regard to the serious nature of the convictions. As a result, I find that the police acted upon the misrepresentations made by the applicant in granting the additions to the applicant's firearm licence. I accordingly find that except for the June 2003 application, the additions to the applicant's firearm licence were obtained by fraud and deception.

3. Do the circumstances of the above fraud and deception and/or any history or tendency towards violent behaviour, result in a conclusion that the applicant is not a fit and proper person to hold a firearm licence?

The reasons given for the revocation of the applicant's licence, as stated above, were the convictions in Queensland, the ten year disqualification in Queensland, and the failure to declare on all WA firearm applications the Queensland disqualification.
Those grounds were expanded upon as the Commissioner's case was developed before the Tribunal to include justification for the revocation on the ground that the applicant had a history, or a tendency towards, violent behaviour. This ground, if established, is a basis upon which a firearm licence may be revolved under s 20(1)(a)(iii) read with s 11(2) of the Act. It was permissible for this additional ground to be raised because by virtue of s 27 of the State Administrative Tribunal Act 2004 (WA) the review is by way of a hearing de novo and is not confined to matters that were before the decision‑maker, the purpose of the review being to produce the correct and preferable decision at the time of the decision upon the review.
The Commissioner sought to establish this ground by cross examination of the applicant in relation to the Queensland convictions, and by proof of the circumstances in which the convictions occurred. In addition, evidence was called from Mrs Hall. Directions had issued for the exchange of witness statements and Mrs Hall's statement, which was made on the 13 July 2004, included some evidence as to the applicant being unpredictable and short‑tempered such that "he just snaps and looses [sic] control of what he is doing when he is angry". Further, it was stated that the applicant had made statements suggesting that Mrs Hall would never leave him implying some sinister intent. She also stated that she had seen the applicant take a rifle with him on at least four occasions following arguments and that on at least one occasion, the applicant had advised her that he had taken a rifle with him with the intent to "top himself", that is, to commit suicide.
Mrs Hall's oral evidence went beyond explanation or expansion upon the written statement, to refer to an incident, when the applicant had paced outside the family home carrying a rifle, as a result of a trade dispute. The precise date of this incident was not fixed, but I accept as submitted by the applicant's counsel, that it was during a period when the applicant's marriage was in difficulty and he was under the pressure of his business failing.
The applicant did not dispute that he had left the home after arguments taking his firearms with him. His evidence was that he took all the firearms, not just one and that this was done "so that no mistakes could be made on either side". He stated that he had placed the rifles in a secure storage facility.
Mrs Hall also disputed the applicant's evidence that he had had to take a rifle with him when transporting livestock to Queensland, in case an animal was injured and had to be put down. She testified that the applicant had a flat‑bed vehicle which was not designed for transporting animals. This was also new evidence not reflected in her written statement. Under cross examination, it was put to Mrs Hall that the livestock had been carried in crates.
An issue arises as to the weight which should be attached to Mrs Hall's evidence, to the extent that it went beyond any explanation of her written statement. The matters raised in this additional evidence were not put to the applicant under cross examination in breach of the rule in Browne v Dunn (1894) 6 R 67. In my view, it is open to the Tribunal to attach weight to this evidence. No complaint was made about the breach until the Tribunal raised, during cross examination of Mrs Hall, that while some aspects of her "additional evidence" were challenged by cross examination, other areas had not been challenged. Further, the cross examination of some of the "additional evidence" showed that the applicant did not dispute it, for example the "pacing incident", but sought to put it in a more favourable context. It was open to counsel for the applicant to apply to call evidence in rebuttal: Reid v Kerr [1974] 9 SASR 367 at [375]; and in addition, the respondent was not represented by a legal practitioner; See "Cross on Evidence", 6th Ed Butterworths, 2000 at para [17460].
I do not accept the criticisms that were made of Mrs Hall's evidence. She gave her evidence carefully and fairly. There was no indication that there was any attempt to embellish her account. To the contrary, she was quite reserved in attempting to explain the tone in which the applicant made the statement that she would never leave him. Nevertheless, I do accept that she was not in a position to know whether the applicant transported any livestock, because she could not dispute the possibility of crates being used to hold livestock. Because I found her to be a credible witness, and on the other hand have not accepted aspects of the applicant's evidence, I am suspicious about whether the applicant's evidence has been truthful in this respect, but in the circumstances, I make no adverse finding against the applicant on this issue. The point was potentially important because the applicant would otherwise have had no justification for taking a rifle with him to Queensland, and it might have resulted in a finding that his conduct giving rise to the Queensland convictions was premeditated.
Where there is a direct conflict between the applicant's evidence and Mrs Hall's as to events occurring in which they were both involved, I accept her evidence in preference to that of the applicant. On that evidence, I find that the applicant acted towards her in an intimidating way. I accept she was in fear of him and that he demonstrated a bad temper. However, Mrs Hall presented as a quiet and timid person who might be easily intimidated. There was no evidence that the applicant had ever assaulted her. There was reference to a minor scuffle between them on the occasion when she finally left the family home. The applicant forcibly removed a credit card from her possession which was required for his business. According to the police evidence, the applicant acted calmly in their dealings with them. The applicant dealt with the dissolution of his marriage and the usual pressures attendant to arranging access to the children of the marriage without any suggestion of inappropriate conduct. It is also noted that an attempt by Mrs Hall to obtain a violence restraining order against the applicant was dismissed.
I do not consider that it is established that the applicant has a tendency towards violent behaviour towards Mrs Hall. The incident in which the applicant paced outside of the family home while armed and the Queensland convictions are of course, relevant, as is the stated intention to commit suicide.
It was submitted for the applicant that s 11(3) of the Act gave some indication that violent behaviour involving a firearm occurring more than five years before applying for a firearm licence should not be regarded as a basis for refusing or revoking a licence. I accept that this subsection indicates that such conduct resulting in a conviction within a five‑year period of itself, regardless of the nature of the incident, is sufficient grounds to refuse or revoke a licence. The section does, of course, not preclude a conviction occurring more than five years previously from leading to a conclusion that a person is not a fit and proper person to hold a firearm licence, where the circumstances of the conviction warrant that conclusion. That is made clear by s 11(6).
The circumstances of the Queensland convictions are particularly serious. The circumstances were regarded as being sufficient to disqualify the applicant from holding a firearm licence in Queensland for a period of ten years from 14 May 1996.
Superintendent Emmanuel was embarrassed that the applicant's last application for an additional firearm to be included in the licence was granted after the fact of the Queensland convictions was known. He explained that an officer would have briefed him on the application and provided a recommendation. He was adamant that he had not been aware of the Queensland convictions.
It is apparent that some additional care needs to be exercised in the process by which delegated officers are briefed in such matters and delegated officers should carry out a sufficient review of the file in order to be satisfied as to the accuracy of such a briefing and the propriety of any recommendation made.
The applicant's evidence of the exact circumstances in which the Queensland convictions occurred, differs in some respects to the official record. It is not necessary to resolve these differences, because even on the applicant's version, his behaviour was deplorable. While the applicant's version reflects the events as having occurred on the spur of the moment, the offences for which he was convicted, reflect in themselves an intentional damage to property by discharging firearms in public. On any basis, the offences are of an extremely serious nature.
The later incident in which the applicant paced outside the family home with a firearm gives additional concern. Mrs Hall's evidence was that the applicant was agitated and she was very anxious.
While all of these incidents occurred, as did the reference to the intention to commit suicide at times when I accept the applicant was under a great deal of financial and personal pressure connected with the failure of his business and the breakdown of the marriage, they reflect a history of a tendency towards violent behaviour involving the use of firearms. The applicant, in my view, recognised that propensity when he testified that he had removed all the firearms from the home so that there were no mistakes "on either side".
At the very least, these incidents reflect that during times of stress there is a risk that the applicant may act inappropriately. While the applicant is no longer subject to the level of stress which at the relevant times caused him to act as he did, there can be no certainty that in the future events will not occur that subject him to stress.
In any event, these incidents should not be seen in isolation from the applicant's conduct in concealing the fact of the Queensland convictions and the fraudulent and deceptive manner in which the further applications were made.
The overriding purpose of the firearms legislation is to provide a regime for the proper control and regulation of firearms. The intention is to ensure that firearms are kept safely and that their whereabouts are controlled. Regulation 4 of the Firearms Regulations enables the Commissioner to ensure that firearms are produced even when applying for the renewal of a licence although that was not done in this case. By virtue of s 11(1) of the Act read with reg 11A, the applicant was obliged to have the rifle stored safely in an approved cabinet. By renewing the licence without disclosing the Queensland convictions, which would have lead to enquiry and to the likelihood of a question being raised as to the whereabouts of the rifle, the Commissioner was falsely lead to believe that the applicant retained possession of the rifle. The applicant has shown a disrespect for the licensing regime and a willingness to act dishonestly to further his own ends. Such conduct is not to be taken lightly, it is in this way that firearms can fall into the wrong hands. For the system to work and the general public to be protected, it is essential that truthful information is provided to the Commissioner by an applicant for a firearms licence and that a licensee meets his obligations as to the safe storage of firearms.
For the above reasons, I conclude that the applicant is not a fit and proper person to hold a firearm licence and I accordingly order as follows.

Orders

1.The decision made on behalf of the Commissioner of Police on 2 April 2004 to revoke the applicant's firearm licence is affirmed.

I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER