Hutchings v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 62

CITATION:	Hutchings -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 62
DIVISION:	General Division
PARTIES:	APPLICANT Michael Anthony Hutchings RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003407
HEARING DATES:	04/04/2001
SUBMISSIONS CLOSED:	04/04/2001
DATE OF DECISION:	04/19/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Australian Broadcasting Tribunal v Bond 1990 94 ALR 11 Nasr -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 138 (9 October 2000) Nohra v Commissioner of Police, New South Wales Police Service [2001] NSWADT 15 (7 February 2001)
REPRESENTATION:	APPLICANT R Thompson, solicitor RESPONDENT C Capper, agent
ORDERS:	1. The decision of the Commissioner of Police to revoke Mr Hutchings’ firearms licences is affirmed.

1 In January 1998 Mr Hutchings applied for a Category A and B Firearms Licence to participate in competitions at the Grafton Rifle Club. On 7 March 2000 a delegate of the Commissioner of Police revoked Mr Hutchings’ Category AB firearms licence. The reason for the revocation was that Mr H was convicted of assaulting a police officer and resisting or hindering a police officer in the execution of duty. In the light of these convictions, officers of the Police Service concluded that “it appears he has a propensity to carry out his threats of violence towards Police.”

2 Mr Hutchings applied to the Tribunal on 27 December 2000 for a review of the decision to revoke his licence. No internal review requested or carried out. At the hearing I exercised my discretion under s 55(2)(b) of the Administrative Decisions Tribunal Act 1997 (ADT Act) to hear the matter despite the fact that no internal review had been requested.

Relevant law

3 The Firearms Act 1996 sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. None of these grounds were relied in the Statement of Reasons. That Statement was amended in the hearing. I asked Mr Capper, representing the Police Commissioner, to convey to officers in the Firearms Registry that care needs to be taken in recording the grounds for revocation. At the hearing, Mr Capper clarified that the grounds on which the Commissioner was relying were those in s 24(2) italicised below:

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
(d) for any other reason prescribed by the regulations.

4 In relation to s 24(2)(d), Clause 17 of the Regulation states that:

In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

5 Based on these provisions, the Commissioner alleges that he made the correct and preferable decision in revoking the firearms licences because:

• Mr Hutchings is not a fit and proper person to continue to hold a firearms licence; and/or
• it is not in the public interest for Mr Hutchings to continue to hold a licence.

6 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Hutchings’ firearms licences on either of these grounds.

Evidence

7 The documentary evidence before the Tribunal was as follows:

• copy of Police Service’s file; and
• affidavit of Michael Hutchings dated 8 February 2001 with a reference attached.

8 No oral evidence was given. Mr Hutchings accepted the contents of the Police Fact Sheet and Mr Capper accepted the contents of Mr Hatchings’ affidavit. Consequently no fact was in dispute.

9 On 24 January 2000, Mr Hutchings was convicted of “assault officer in execution of duty” and “resist or hinder police officer in the execution of duty”. He was fined $650 for the first offence and $150 for the second. The Police Fact Sheet records that at 3 am on 25 September 1999 in Prince Street, Grafton, police officers were patrolling in a car when they saw Mr Hutchings and two other people walking along the footpath. Mr Hutchings was moderately affected by alcohol at the time and yelled out to the police officers, “Give us a lift.” When the police officers kept driving, Mr Hutchings said, “Well get fucked then.”

10 Police were notified by radio that the window of a business premises had been smashed. Police officers saw Mr Hutchings about 25 metres away and asked him to stop. Police asked Mr Hutchings twice whether he knew who smashed the window. Mr Hutchings replied on both occasions, “I didn’t do anything fucken wrong.” Police officers told Mr Hutchings to keep his language down and he apologised. Mr Hutchings told the police officers his name. When a police officer asked Mr Hutchings his date of birth, he said, “Why the fuck should I tell you, I haven’t done anything wrong.” Senior Constable Tanner told Mr Hutchings he was under arrest and took him by the left arm. Mr Hutchings said, “Get fucked, you cunt” and swung his right arm and punched Senior Constable Tanner on the left side of his head. Senior Constable Tanner and Constable Lysaught then held Mr Hutchings and attempted to put him in the police truck. Mr Hutchings resisted and police officers put Mr Hutchings on the ground. During the course of this incident, Constable Lysaught injured his right elbow and Mr Hutchings’ forehead was cut. The officers then handcuffed Mr Hutchings and put him in the police truck. At the police station Mr Hutchings was put in the dock and said to Constable Tanner “I know you, I’ll fucken kill you.”

11 Mr Hutchings swore an affidavit which stated that his father owns a .222 rifle and two .22 rifles. Mr Hutchings and his father use these guns at the Rifle Range of the Grafton Rifle Club, approximately once a week.

12 Mr Hutchings admitted the convictions. He said that the circumstances surrounding those convictions were that he was arrested for smashing a window of premises in the main street of Grafton. He denies that he smashed the window and the Local Court dismissed the charges against him relating to that incident. He said:

When arrested I protested my innocence vigorously and struggled and fought with the police because I was angry and upset at being arrested for something I had not done. I realise now that I should not have acted in this manner and regret my actions.

13 Mr Hutchings says he has never been convicted of any offence relating to firearms and has fulfilled his obligations as a holder of a firearms licence.

14 Mr Hutchings submitted a reference from V Sharp, Chief Range Officer at the Grafton Rifle Club Inc. That letter says, in part, that Mr Hutchings is a member of the club and has:

“. . . at all times conducted himself in a professional manner. As chief range officer of the field Class division I would have no hesitation in accepting Michael as a responsible handler of firearms.”

Fit and proper person

15 The legislation does not list the factors that the Tribunal should take into account in determining whether a person is a fit and proper person to continue to hold a licence. The principles and objects of the legislation are relevant when exercising this discretion.

16 The principles of the Firearms Act are set out in s 3:

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.

17 The Tribunal has frequently quoted the decision in Australian Broadcasting Tribunal v Bond 1990 94 ALR 11 as a guide to the consideration of the meaning of “fit and proper”. In that case, Toohey and Gaudron JJ said at 65, that:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

18 The “activities in question” are those permitted by firearms licensees to possess and use firearms in accordance with the legislation. The conduct referred to in the passage quoted above is Mr Hutchings’ language, threats and physical resistance to police officers on 25 September 1999.

19 The question Toohey and Gaudron JJ pose in the Bond Case should be addressed. Is the question when determining whether Mr Hutchings is a fit and proper person:

• whether improper conduct has occurred,
• whether it is likely to occur,
• whether it can be assumed that it will not occur, or
• whether the general community will have confidence that it will not occur; or
• some other question.

20 The fact that Mr Hutchings has behaved improperly and been convicted of a criminal offence is not sufficient reason to conclude that he is not a fit and proper person to have a firearms licence. There must be some nexus between the improper conduct and the possession or use of firearms. Given the principles set out in s 3 of the Firearms Act, if that conduct leads to an inference that Mr Hutchings could pose a risk to public safety if he had access to firearms, then he will not be a fit and proper person to have a licence. There may be other inferences which arise as a result of improper conduct. In this case, the specific inference the administrator appears to be asking the Tribunal to draw is that Mr Hutchings may use firearms to carry out his threat to Constable Tanner that: “I’ll fucken kill you.” I also assume that the administrator is suggesting that because Mr Hutchings resisted arrest, he may use a firearm if involved in a dispute with police in the future

21 Other cases decided by the Tribunal may be relevant. In Nasr -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 138 (9 October 2000), Mr Nasr pleaded guilty to charges of common assault, maliciously destroy or damage property and having custody of an offensive implement in a public place. The incidents involved an altercation with a fellow motorist over a car parking space. The Tribunal affirmed Commissioner’s decision to revoke his firearms licence but added that “when Mr Nasr is no longer subject to a recognisance and has demonstrated an ability to control his anger without resorting to violence, the Commissioner may be satisfied that he can again be afforded the privilege of firearms possession and use without risk to public safety.”

22 In Nohra v Commissioner of Police, New South Wales Police Service [2001] NSWADT 15 (7 February 2001) Mr Nohra was convicted of several offences one of which involved being in the company of four other men when they went to the home of two people. One of the men produced a firearm and threatened the victims. While it was not alleged that Mr Nohra either provided the firearm or threatened the victims, his presence when the incident occurred led to a significant fine and a lengthy community services order being imposed. Despite the fact that Mr Nohra admitted to the offence and his involvement and that the offence occurred more than 9 years ago, the Tribunal concluded that circumstances of this offence raised serious questions about whether Mr Nohra could be trusted to use firearms safely.

23 Both these cases involved a weapon. Mr Nasr’s case also involved violence. Mr Hutchings did not use a weapon but physically resisted arrest and later threatened to kill Constable Tanner. He was moderately affected by alcohol.

24 The Chief Range Officer at the Grafton Rifle Club gave Mr Hutchings a positive reference and commented that he is a responsible handler of firearms. Mr Hutchings has never been convicted of any offences relating to firearms.

25 Taking all the evidence into account, I am satisfied that Mr Hutchings could pose a risk to public safety if he had access to firearms. In particular, he has threatened to kill a police officer and physically resisted arrest. Consequently he is not a fit and proper person to have a firearms licence.

26 If Mr Hutchings is able to satisfy the Commissioner of Police, (for example through attendance at an anger management course and a period of good behaviour) that he can control his anger without resorting to violence or threats of violence, the Commissioner may be satisfied that he can again be afforded the privilege of firearms possession and use.

Orders

27 The decision of the Commissioner of Police to revoke Mr Hutchings’ firearms licences is affirmed.