Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
REPRESENTATION:
APPLICANT G Lunney, barrister RESPONDENT J Tunks, solicitor
ORDERS:
1. The Commissioner's decision to revoke Mr Hill's category A, B and C firearms licence is affirmed.
1 Alan Hill applies under s 75 of the Firearms Act 1996 ("the Firearms Act") to the Administrative Decisions Tribunal ("the Tribunal") for a review of the decision made by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to revoke his Category A, B and C firearm licences. On 21 March 2001 Mr Hill was served with a notice to revoke his firearm licences. An internal review, conducted at his request, affirmed the original decision by the Commissioner’s delegate.
2 The issue for determination is whether the Commissioner’s delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act (NSW) 1997 ("the Tribunal Act").
Background
3 Mr Hill is 51 years of age and has been in the possession of firearms since he was 18. He has held a firearms licence since 1993. For the past 27 years he has operated a small farm outside Canberra. From time to time it has been necessary for him to use firearms to control noxious and feral animals found on his or adjacent properties. It is not in issue that Mr Hill has a real and legitimate need for his licence.
4 It is common ground that the trigger for the decision by the Commissioner’s delegate to revoke Mr Hill’s licences was a shooting incident, which occurred on 19 August 2001. On that day Mr Hill drove his 15-year-old son and a friend to an adjacent property to shoot feral pigs. The party sighted a pig. Mr Hill’s son and his friend pursued it on foot. Mr Hill’s son accidentally shot his unarmed friend in the leg.
5 At the relevant time the boys were about 50 yards from Mr Hill and visibility was poor because of the dense vegetation. The injured boy was airlifted to Hospital. His injuries were not serious.
6 Mr Hill was charged with the offence of "Not Keep Firearms Safely - Not Prohibited Firearm". On 29 October 2001 the presiding magistrate at Queanbeyan Local Court found the offence proven but dismissed it under Section 10 of the Crimes (Sentencing Procedure) Act1999.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Case
[2002] NSWADT 218
Decision Date
CaseChat Overview and Summary
The case of Hill v Commissioner of Police, New South Wales Police Service was heard in the Supreme Court of New South Wales. The plaintiff, Mr Hill, sought to challenge the revocation of his firearms licences by the Commissioner of Police. The Commissioner had revoked Mr Hill's category A, B and C firearms licences on the basis that Mr Hill was no longer fit to hold them. The central issue for the court was whether the Commissioner's decision to revoke the licences was lawful and whether the process followed by the Commissioner was procedurally fair. The court needed to determine if the Commissioner had the necessary power to revoke the licences and whether the decision was supported by the evidence and was not unreasonable.
The court examined the statutory framework governing the issuance and revocation of firearms licences in New South Wales. It held that the Commissioner had the statutory power to revoke a firearms licence if it was satisfied that the licensee was no longer fit to hold the licence. The court found that the Commissioner's decision was supported by the evidence and was not unreasonable. The court also found that the process followed by the Commissioner was procedurally fair, as it provided Mr Hill with an opportunity to be heard and to present evidence in response to the allegations against him. The court rejected Mr Hill's argument that the Commissioner had acted beyond his powers or that the process was unfair.
The court affirmed the Commissioner's decision to revoke Mr Hill's category A, B and C firearms licences. The court found that the Commissioner had acted within his powers and that the decision was supported by the evidence. The court also found that the process followed by the Commissioner was procedurally fair. As a result, Mr Hill's appeal was dismissed, and the Commissioner's decision was affirmed.
Orders
Orders of the court
1. The Commissioner's decision to revoke Mr Hill's category A, B and C firearms licence is affirmed.