Jedrasiak v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 208

CITATION:	Jedrasiak -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 208
DIVISION:	General Division
PARTIES:	APPLICANT John Jedrasiak RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013130
HEARING DATES:	26/09/2001
SUBMISSIONS CLOSED:	09/26/2001
DATE OF DECISION:	12/04/2001
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)
REPRESENTATION:	APPLICANT G Gillett, barrister RESPONDENT D Paterson, solicitor
ORDERS:	The Commissioner's decision to revoke Mr Jedrasiak's firearms licence is affirmed.

1 These proceedings relate to a decision made by the Commissioner of Police (the Commissioner) to revoke Mr Jedrasiak’s Category H firearms licence. The reason for the revocation was an allegation that Mr Jedrasiak, who operates a security business, was affected by alcohol at a time when he was on duty and carrying a firearm.

2 The Commissioner relied on several grounds set out in the Firearms Act 1986 (Firearms Act) for revoking Mr Jedrasiak’s licence. In summary, the Commissioner submitted that he had made the correct decision in revoking Mr Jedrasiak’s firearms licence because:

• Mr Jedrasiak is no longer a fit and proper person to hold a licence; (s 24(2)(c);
• It is not in the public interest for Mr Jedrasiak to continue to hold a licence (Cl 17 of Firearms (General) Regulation 1997); and
• Mr Jedrasiak has committed a fundamental breach of the firearms legislation.
Relevant legislation
3 The Firearms Act establishes 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. The provisions in bold are relied on by the Commissioner.
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.
Issues
5 The issue for the Tribunal is whether the Commissioner made the correct and preferable decision in revoking Mr Jedrasiak’s licence on any of the above grounds. The evidence and findings of fact, my understanding of the applicable law, and the reasoning process in coming to this conclusion are set out below.

Evidence
6 The evidence in this case consisted of oral evidence from Senior Constable Urio, Mr Jedrasiak and Mr Jedrasiak’s son, Steven Jedrasiak. The Tribunal viewed a video tape of an interview between Mr Jedrasiak and Senior Constable Urio recorded on 3 February 2001. Documentary evidence consisted of statements from Mr Urio, Mr Jedrasiak snr and Mr Jedrasiak jnr, a Custody Management Record completed by Senior Constable Hatter, a plan of the Cabramatta Mall area and the Police Service’s file.

7 The Custody Management Record, and the representations it contains, are admissible as a business record. However, as Constable Hatter was not called to give evidence, I give little weight to the representation made by Constable Hatter that Mr Jedrasiak was intoxicated at the time of the interview.

8 The Commissioner did not rely on the conduct or statements of Mr Jedrasiak during the events of the evening of 3 February 2001 as evidence supporting their decision to revoke the firearms licence. The sole factual basis for the revocation was that Mr Jedrasiak was moderately to well affected by alcohol while on duty as a security officer and in possession of a firearm. In these circumstances I will not refer in detail to the evidence about his conduct on that night, except to the extent that the evidence relates to the degree to which he was affected by alcohol.

9 The respondent also conceded that there is no other adverse evidence in relation to Mr Jedrasiak’s character or fitness to have a firearms licence apart from the incident on 3 February 2001. In fact the Commissioner agreed that Mr Jedrasiak had previously assisted police with their inquiries and had always presented as a person of good character.

10 Mr Jedrasiak gave evidence that in 1998 he started his own security business. His main activities are static guard work, night patrols, lock ups and alarm call outs. Prior to 3 February 2001 he had been working long hours and was only getting 4 to 5 hours sleep a night. On 3 February 2001 he had 3 or 4 stubbies of beer with his son Steven around lunch time and did not have anything to eat during the day. Shortly before 9 pm he went to lock up the Cabramatta Mall as part of his duties of providing security services. His son Steven was with him and after an altercation with two males who threatened to kill him, Mr Jedrasiak rang the police.

11 Senior Constable Urio gave evidence that he has been a police officer for 13 years. For six of those years he has been stationed at Cabramatta. He has dealt with numerous people who have been under the influence of alcohol. He has also worked in the hotel industry as a part-time barman for approximately five years.

12 On 3 February 2001 he and Inspector Baker went to Woolworths supermarket in Cabramatta following a phone call from Mr Jedrasiak. Senior Constable Urio recognised Mr Jedrasiak from several previous dealings with him in relation to police duties. Mr Jedrasiak was carrying a 0.38 Coldsix shot revolver in a holster to his right side.

13 Following a conversation with the police officers, Mr Jedrasiak accompanied them to the police station. Senior Constable Urio told the Tribunal that he could smell intoxicating liquor on Mr Jedrasiak’s breath and noticed that his eyes were glazed and slightly red. He also said that Mr Jedrasiak had trouble talking and was stumbling over his words. Senior Constable Urio formed the view that Mr Jedrasiak was moderately to well affected by alcohol.

14 Police removed Mr Jedrasiak’s firearm and placed it in a safe. Mr Jedrasiak then participated in a video interview which was admitted into evidence in these proceedings. During the interview Mr Jedrasiak admitted that he had been drinking beer during the day but he had not been working. Initially Mr Jedrasiak told the police officers interviewing him that “I did have two or three beers at lunchtime.” He said he had the beers at his office with his son who was fixing the computers. In answer to a question from police officers about what type of beer he consumed, Mr Jedrasiak said “Tooheys, Lights. I don’t know, wouldn’t have a clue.” I questioned Mr Jedrasiak as to whether he normally drank light beer and he said that he didn’t. He said “I guess it wasn’t light beer.”

15 Later in the interview with Senior Constable Urio, Mr Jedrasiak said he had three and a half beers. He said he drank stubbies and that he had not had anything to eat since the previous evening. Senior Constable Urio asked him why he was flushed in the face. He said “Like I said, the issue with money, someone ripping me off, I’ve been under a lot of stress the last week or so, heaps.” Constable Urio also asked him why his speech was “a bit slurred tonight.” Mr Jedrasiak said “Well, like I said, I haven’t had much sleep.” Senior Constable Urio then said “I have the opinion that you are moderately affected by alcohol, in my experience, OK?” Mr Jedrasiak responded “I don’t think I’m drunk, or . . I’d never pull a gun out on someone or shoot them or. . that’s stupid, you know what I mean, no way.”

16 Senior Constable Urio also told Mr Jedrasiak that he could smell alcohol on his breath. Mr Jedrasiak said “I had nothing to eat, nothing at all, no chewing gum whatever. All I’ve had are a couple of beers.”

17 Inspector Baker then asked Mr Jedrasiak if he was aware when he drank the beer that he would have to lock up the mall later in the evening. Mr Jedrasiak agreed that he knew he had to go and lock up the mall when he drank the beer. Mr Jedrasiak did not acknowledge that there was a potential danger to the public if he was affected by alcohol when performing security industry duties which involved carrying a firearm. He did not tell the Tribunal what his future intentions were about drinking and carrying a firearm.

18 After the interview Senior Constable Urio said that he intended to charge Mr Jedrasiak with being in possession of a firearm while intoxicated. On legal advice, Senior Constable Urio did not proceed with that charge. Senior Constable Urio said that he had no power to require Mr Jedrasiak to undergo a breath test or a blood test to determine how much alcohol he had consumed because it was not a traffic matter. He agreed that he did not request a medical examination or conduct a sobriety test.

19 Constable Urio said Mr Jedrasiak’s face was flushed but agreed that it could have been because he was angry rather than alcohol affected. He also agreed that the video showed that Mr Jedrasiak removed the security and firearms licences from his wallet without difficulty.

20 Steven Jedrasiak gave evidence based on his statement and was not cross-examined by the Commissioner. He said he was working in his father’s office on the day in question and that he went to a bottle shop to buy a carton of stubbies. He went to Woolworths to buy some food for dinner and intended to get a lift home with his father after he had finished locking up the mall. After the police arrived Steven Jedrasiak said he went with his father to the police station. He told the police that he and his father had had a couple of beers about lunch time.

21 I asked Steven Jedrasiak some questions about the number and type of beers he and his father had consumed and the extent to which his father was affected by alcohol. He said he bought 12 stubbies just before noon. He said he drank about 7 of the beers himself and that his father had his last beer about mid afternoon.


Respondent’s submission
22 The basis of the respondent’s case was that Mr Jedrasiak was affected by alcohol while on duty as a security officer and in possession of a firearm. The Commissioner did not rely on Mr Jedrasiak’s conversations or conduct on the evening of 3 February 2001, except as an indication of the degree to which he was affected by alcohol.

23 Ms Paterson pointed out that s 64 of the Firearms Act makes it an offence to handle or use a firearm while under the influence of alcohol or any other drug. That sections states that:

(1) A person must not handle or use a firearm while the person is under the influence of alcohol or any other drug.
Maximum penalty on summary conviction: 50 penalty units or imprisonment for 2 years, or both.
Maximum penalty on conviction on indictment: imprisonment for 5 years.
24 Ms Paterson noted that it was debatable in this case as to whether Mr Jedrasiak had “handled or used” his firearm on the evening in question. That was one of the reasons that he was not charged with this offence. Despite the fact that no breath or blood test was administered, Senior Constable Urio was satisfied that Mr Jedrasiak was at least “moderately” affected by alcohol. In Ms Paterson’s submission, it is a fundamental breach of the provisions of the Firearms Act to carry a firearm when that person is under the influence of alcohol. The community would expect that people who had been drinking should not be able to carry a firearm.

Applicant’s submissions
25 Mr Gillett on behalf of the applicant submitted that Mr Jedrasiak has not been charged with or convicted of any offence. He was the one who contacted police when he found himself in a potentially dangerous situation. His affidavit evidence was not challenged. That evidence states that he had 3 or 4 beers during the day and had not had anything to eat. His evidence was that he was not affected by alcohol.

Findings of fact
26 Given the respondent’s submission, the only finding of fact I need to make is the extent to which Mr Jedrasiak was affected by alcohol on the evening in question. His own evidence is that he had three and a half or four beers around lunch time, that he was very tired and had not had anything to eat that day. Senior Constable Urio told Mr Jedrasiak in the interview that he was “moderately affected” by alcohol. Senior Constable Urio said in his statement that Mr Jedrasiak “was moderately to well affected by alcohol.” I viewed the video of the interview. Mr Jedrasiak was not slurring his words during that interview. He took his wallet out of his back pocket and produced his security industry and firearms licences without difficulty.

27 Senior Constable Urio gave credible evidence and I accept that he formed the view before and during the interview that Mr Jedrasiak was moderately affected by alcohol. I do not accept the version expressed in his later statement that he formed the view that Mr Jedrasiak was “moderately to well affected” by alcohol. His opinion straight after the events is more reliable. Although I accept that Senior Constable Urio genuinely believed that Mr Jedrasiak was moderately affected by alcohol, there is other evidence which does not support that opinion. In particular, Mr Jedrasiak said that he had drunk 3 or 4 beers several hours earlier. Steven Jedrasiak supported that evidence when he said that his father had about three beers, the last being consumed in the middle of the afternoon. I also accept Mr Jedrasiak’s evidence that he was very tired and had not had anything to eat during the day. These matters all contributed to his physical and mental condition at the time. During the interview Mr Jedrasiak was clear and coherent and his co-ordination was not affected. Based on all the evidence I am satisfied that Mr Jedrasiak was mildly affected by alcohol on the evening in question. I also find that Mr Jedrasiak is otherwise a person of good character.


Reasons and decision
28 The Commissioner relied on three grounds for revocation. These were that Mr Jedrasiak is not a fit and proper person to hold a licence; that it is not in the public interest for Mr Jedrasiak to continue to hold a licence and that Mr Jedrasiak has committed a fundamental breach of the Firearms Act .

29 The question for the Tribunal is whether the Commissioner made the correct and preferable decision in exercising his discretion to revoke Mr Jedrasiak’s licence. There is no guidance in the legislation in relation to how this discretion should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. Those principles and objects are set out in section 3 in the following terms:

(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 sales 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.
30 This provision makes it clear that gun ownership and use is a privilege which is conditional on the overriding need to ensure public safety. Public safety is promoted in the legislation by placing strict controls on the possession and use of firearms.

31 Fundamental breach. I can deal briefly with the respondent’s third submission. Committing a “fundamental breach” of the Firearms Act is not a ground for revoking a firearms licence. The Commissioner may revoke a person’s licence under s 24(2)(a) for any reason for which the licensee would be required to be refused a licence of the same kind. Those reasons include conviction for prescribed offences within the period of 10 years before the application for the licence was made: s 11(5)(b). Under s 5 of the Regulation prescribed offences include some firearms offences. In this case, Mr Jedrasiak has not been convicted of such an offence. Consequently this ground is not a ground on which the Commissioner could validly revoke Mr Jedrasiak’s licence.

32 Fit and proper person. The assessment of whether a person is a "fit and proper" person to engage in certain activities was discussed by the High Court in Australian Broadcasting Tribunal v Bond (1990 94 ALR 11). Toohey and Gaudron JJ at 65 stated 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.
33 Mr Jedrasiak was mildly affected by alcohol when he undertook security duties while carrying a gun. There is a clear nexus between his conduct and the possession or use of firearms. The conduct in this case is directly related to the activities which Mr Jedrasiak’s firearms licence allows him to perform.

34 Given the principles set out in s 3 of the Firearms Act, if that conduct leads to an inference that Mr Jedrasiak cannot be trusted to use or handle firearms safely then he will not be a fit and proper person to have a licence.

35 It is an offence to handle or use a firearm while under the influence of alcohol. Mr Jedrasiak was never charged with that offence. I have found that he was mildly affected by alcohol when carrying a firearm. While I accept his evidence that he was not drunk and would “never pull a gun out on someone or shoot them” I am satisfied that being mildly affected by alcohol when carrying a firearm will increase the risk of an injury occurring. One aim of s 16 of the Firearms Act is to minimise that risk.

36 The factors which support a finding that Mr Jedrasiak is still a fit and proper person to hold a firearms licence are:

• he is a person of good character;
• he has not been convicted of any criminal offence; and
• he has never actually used his firearms in a manner that would compromise public safety.
37 The factors which support a finding that Mr Jedrasiak is no longer a fit and proper person to hold a firearms licence are:

• he consumed alcohol knowing that he would be performing security duties and carrying a firearm later that day;
• he was mildly affected by alcohol when carrying a firearm;
• he did not acknowledge that there was a potential danger to the public if he was affected by alcohol when carrying a firearm; and
• he did not tell the Tribunal what his future intentions were about drinking alcohol and carrying a firearm.
38 Weighing up these factors I consider that Mr Jedrasiak is no longer a fit and proper person to hold a firearms licence. Despite his good character, he considers it acceptable to drink alcohol and then perform duties which involve carrying a firearm. The objects of the legislation will not be promoted if people with those views and practices hold firearms licences.

39 There may come a time when Mr Jedrasiak can convince the Commissioner that he will not be affected by alcohol when he is carrying a firearm and that there is consequently no risk to public safety if he is granted a licence.

40 Having determined this matter on the basis of the "fit and proper person" ground, I do not need to consider the "public interest" ground relied on by the Commissioner.


Orders
41 The Commissioner’s decision to revoke Mr Jedrasiak’s firearms licence is affirmed.