John v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 33

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	John v Commissioner of Police, NSW Police Force [2016] NSWCATAD 33
Hearing dates:	16 December 2015
Date of orders:	22 February 2016
Decision date:	22 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	Firearms Act - revocation of licence – reasonable cause to believe - may not personally exercise continuous and responsible control over firearms because of domestic circumstances.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156 Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 LY v Commissioner of Police, NSW Police [2004] NSWADT 115 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Category:	Principal judgment
Parties:	Jodi John (Applicant) Commissioner of Police, NSW Police Force
Representation:	Solicitors: PWA Legal (Applicant) Sparke Helmore(Respondent)
File Number(s):	1510503

REASONS FOR DECISION

BACKGROUND

1. This is an application by Ms Jodi John to seek a review of the decision by the Commissioner of Police (‘the Commissioner’) to revoke her firearms licence. In revoking the licence, the delegate of the Commissioner found that, in light of Ms John’s domestic circumstances, it would not be in the public interest for Ms John to continue to hold a firearms licence. This decision was affirmed following an internal review of the matter.

2. Ms John’s application for review was made within time and a hearing was held before this tribunal, the NSW Civil and Administrative Tribunal (‘the Tribunal’), which has jurisdiction to review this decision pursuant to section 75(1) (c) of the Firearms Act1996 and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW). In accordance with section 63 of the Administrative Decisions Review Act 1997, the role of the Tribunal is to make the correct and preferable decision on the material before it.

3. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

4. The standard of proof that applies in these proceedings is the civil standard, that is, the balance of probabilities, to the standard enunciated in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10.

5. In this case, the Tribunal must determine whether, on the evidence before it, Ms John’s firearms licence should be revoked.

RELEVANT LAW

6. The underlying principles of the Firearms Act are, relevantly,

• to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

• to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

7. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].

8. Sections 11(4)(a) of the Firearms Act provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances. Section 24(2)(a) of the Act allows a firearms licence to be revoked for this reason.

9. The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs 41-43. There the Tribunal referred to the decision of Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 in which Emmett J stated that the words 'reasonable cause to believe' are

"not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief.”

10. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115, the Tribunal found that this principle equally applies in the revocation of a firearms licence given that the Tribunal, and the Commissioner, must objectively be satisfied from established facts of the matters set out in paragraph 11(4)(a) of the Firearms Act.

11. In Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156 at [56] the Tribunal observed in the context of domestic violence:

Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.

12. Section 24(2)(d) of the Firearms Act prescribes that a licence may be revoked for any other reason prescribed by the Firearms Regulation 2006. This includes where the Commissioner (or on review, the Tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold the licence. (clause 19 of the Firearms Regulation)

13. The test in relation to 'public interest' set out in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 is whether:

based on all the evidence, it would have confidence that (the applicant) would not pose a risk to public safety if he had access to firearms. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

14. The ‘public interest’ allows a consideration of issues going beyond an applicant’s character to be taken into account. These may include concerns in relation to public protection, public safety and public conference in the administration of the licensing system. Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

EVIDENCE

15. The following documentary evidence is before me:

• Documents provided by the Commissioner in accordance with s58 of the Administrative Decisions Review Act 1997. These include details of the decision to revoke Ms John’s firearms licence; COPS event records in relation to police attendance at Ms John’s premises; details of and correspondence relating to the suspension of Ms John’s firearms licence in 2009 and 2015; Ms John’s 2010 re-application for a firearms licence and references provided in support of her application;

• Correspondence from Ms John to the Tribunal in relation to the 2015 suspension of her firearms licence;

16. Ms John, Ms Sandra Trevithick and Senior Constable Kelson gave oral evidence before the Tribunal.

iSsues

17. The following issues are relevant to this application for review:

• Whether Ms John contravened s70 of the Firearms Act by declaring in her re-application for a firearms licence on 29 September 2010 that she had not had a firearms licence suspended;

• Whether Ms John breached s39 of the Firearms Act by keeping firearms in a safe to which her husband had access;

• Whether Ms John used her firearm in the course of her employment at Bindaree Beef, Inverell in contravention of s7A(2)(a) of the Firearms Act;

• Whether there is reasonable cause to believe that Ms John may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances; and

• Whether it is in the public interest for Mrs John to continue to hold a firearms licence.

EVIDENCE

Whether Ms John contravened s70 of the Firearms Act by declaring in her re-application for a firearms licence on 29 September 2010 that she had not had a firearms licence suspended;

18. Contained in the s58 documents is correspondence between NSW Police and Ms John in relation to the suspension of her firearms licence in 2009. This includes a notification to Ms John of the suspension of her firearms licence on 7 July 2009 and a further notification on 9 October 2009 of the lifting of this suspension.

19. Ms John told the Tribunal that whilst she agreed that police officers had taken her guns away in 2009, she wasn’t aware that her firearms licence had been suspended. She couldn’t remember receiving a letter advising her that her firearms licence had been suspended.

Whether Ms John breached s39 of the Firearms Act by keeping firearms in a safe to which her husband had access

20. Ms John told the Tribunal that the gun safe she uses has two compartments: one compartment for rifles and the other compartment for gunpowder and ammunition. She told the Tribunal that her husband would make his own bullets. She agreed that she and her husband both have access to the firearms safe where her firearms are kept and where her husband also keeps a rifle. Her husband also has a separate safe in which he keeps a pistol.

Whether Ms John used her firearm in the course of her employment at Bindaree Beef, Inverell in contravention of s7A(2)(a) of the Firearms Act

21. In a letter to the Firearms Registry dated 3 February 2015, Ms John wrote that:

I am [a] security supervisor and part of my role and conditions of employment is that I am able to shoot a cow if needed after hours when there are no stockmen on site.

22. Ms John gave evidence that in her capacity as a security guard at Bindaree Beef, an abattoir in Inverell, she is required, at times, to use a stun gun (also called a bolt gun) to put down injured animals. She told the Tribunal that she had sought clarification from the police as to whether the suspension of her firearms licence also prevented her from using a stun gun or bolt gun. She was advised that a firearms licence is not required to use a stun gun or bolt gun. In evidence before the Tribunal, she denied using a rifle in her workplace or, indeed, anywhere outside of her property.

23. Ms Sandra Trevithick has been a training manager at Bindaree Beef for 15 years and worked with Ms John over a two-year period.

24. In a letter dated 15 December 2015, Ms Trevithick wrote that:

While Jodi John was employed as a security guard at Bindaree Beef she never used a firearm. If she need[s] to put a animal down she had to use a Cash Magnum .22 Stunner. Captive bolt stunners fire a bolt out of the barrel of a gun. The Bolt is able to protrude 8-10cm out of the opening before it is stopped by a flange. You do not require a license to operate the Cash Magnum .22 stunner. But [it] is a company requirement to be signed off as competent to use the stunner which Jodi was.

25. In her evidence to the Tribunal, Ms Trevithick confirmed that during her employment with Bindaree Beef, Ms John would use a stun gun on animals in the abattoir. It was part of her job as a security guard to be able to operate a stun gun. If the stun gun wasn’t effective, Ms John could then contact the abattoir’s stockmen who were authorised to use a rifle to put down animals. She confirmed that the abattoir’s stockmen were on call after hours. Ms Trevithick told the Tribunal that that Ms John had no access to a rifle at the abattoir and no permission to use one while on duty at the abattoir.

Whether there is reasonable cause to believe that Ms John may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.

26. Ms John gave evidence before the Tribunal that her husband, from whom she is estranged, is planning to move to Sydney or the coast once he finds work. An apprehended violence order, which was made against him in December 2015, will expire in December 2016. Ms John’s evidence, that there have been no more incidents of domestic violence since the making of the order, was undisputed by the Commissioner.

27. Ms John agreed that because the property where she lives is jointly held, her husband can return there ‘whenever it suits him.’ Despite their estrangement, Ms John has agreed that her husband could build his own place on the property.

28. In relation to evidence put forward by the Commissioner that in 2009 she had threatened to kill her husband, Ms John told the Tribunal that any threats she made had been taken out of context. She denied ever threatening to use any firearms during any domestic instances.

29. She agreed that there had been domestic incidents with her husband between 2002 and 2012 but described them as ‘mild incidents’ of domestic violence.

30. She agreed that in 2014, she and her husband had an argument and that he had hit her with a small torch. At the time of the altercation, Ms John agreed that her husband had his rifle with him because they had ‘intended to do a lap of the property together’. Mr John had been drinking and Ms John was fearful that her husband would shoot their dog. It was in this context that Ms John then called the police. She agreed that when the police arrived, they removed unsecured bullets belonging to her husband.

Whether it is in the public interest for Ms John to continue to hold a firearms licence

31. In her statement dated 13 October 2015, Senior Constable Vanessa Kelson described Ms John’s behaviour following the suspension of her firearms in 2015. According to Senior Constable Kelson, on 31 January 2015, Ms John brought her firearms and firearms licence to the police station. Senior Constable Kelson confirmed that another police officer had dismantled the firearms, including one that was very old. According to Senior Constable Kelson, Ms John then became irate stating that if she did not get to keep her firearms, her husband would leave her and that she may as well kill herself then leave a note explaining that it is the fault of the police that she committed suicide. She also threw her cut-up driver’s licence at the police officer. In her statement, Senior Constable Kelson wrote that she found ‘Ms John to be irrational and angry and it was difficult to maintain a conversation with her.’ According to Senior Constable Kelson, Ms John then threatened to get an unregistered firearm, advising that she knew how she could get one.

32. In evidence before the Tribunal, Senior Constable Kelson agreed that she did not see Ms John cut up her driver’s licence and did not take a notebook entry of her interaction with Ms John on 31 January 2015. She was unable to recall which officer had been present during the discussion and was not able to produce any relevant CCTV coverage. She agreed that when police officers are called to a domestic situation, they are bound to take out an apprehended violence order. In her statement she said that Ms John had told her she needed her firearm licence to put down cattle on occasion in her capacity as a security officer at Bindaree Beef. Senior Constable Kelson was unable to recall any further details of this part of the conversation.

33. In a letter to the Tribunal dated 20 October 2015, Ms John agreed that while at Inverell Police Station on 31 January 2015, she became upset when one of the police officers started to dismantle her grandfather’s rifle.

34. According to Ms John

I told the officers that I needed the firearms for humanely putting livestock down and that I have had to shoot a number of kangaroos that had been stuck in fences and broken legs…I also told them I was not a criminal and that they should be out getting the illegal firearms as there were plenty of them around.

35. In evidence before the Tribunal, Ms John agreed that when she attended the police station to return her firearms, she had become upset when one of the police officers proceeded to dismantle (and, according to Ms John, damage) a rifle that had belonged to her grandfather and which had great sentimental value to her. She denied cutting up her driver’s licence in front of the officer, stating instead that a friend’s child had earlier cut it up. She denied threatening to commit suicide.

36. She told the Tribunal that if her firearms licence were to be restored to her, she would store it safely and would only use it to shoot vermin and put down animals.

37. In a report by the psychologist, Peter Jenkins, dated 2 October 2009, he provides the following opinion:

It is my opinion that Jodi John does not exhibit any signs of mental illness and is unlikely to suffer a nervous breakdown in the near future. She is unlikely to be a safety risk to herself or others. On the basis of this assessment, she appears competent to hold a firearms licence.

38. Ms John told the Tribunal that she couldn’t remember having previously seen the report. When shown correspondence advising that Ms John’s suspension had been lifted, Ms John told the Tribunal that she couldn’t remember the licence being suspended in the first place.

39. In her report dated 3 December 2015, clinical psychologist Julie Martin stated that Ms John’s MCMI-II profile indicated that she had ‘obsessive-compulsive personality traits, dependent personality treats, and schizoid personality traits.’ Her responses on the MCMI-II indicated a distinct tendency towards avoiding self-disclosure of matters of a personal nature, problematic or not. Ms Martin found that on the basis of her assessment, Ms John had no significant mental health condition and did not appear to be at risk of harm to herself and others.

40. In light of the fact that Ms Martin was unavailable for cross-examination by the respondent, I have given limited weight to the report.

FINDINGS AND REASONS

41. I accept that Ms John’s firearm licence was suspended in July 2009 and the suspension was subsequently lifted in October 2009. On the evidence before me, I am reasonably satisfied that on that occasion, and in light of the return of her firearms two months after she had handed them in, Ms John may not have understood that her licence had actually been suspended. For this reason, I am not satisfied that she knowingly made a false statement in 2010 when she stated on her re-application for a firearms licence that her licence had never previously been suspended.

42. On the evidence before me, I am not satisfied that Ms John ever used a firearm to put down animals whilst working as a security guard at Bindaree Beef abattoir. I accept Ms John’s evidence, as corroborated by her training manager, Ms Trevithick, that she only ever restrained and put down animals using a stun gun, which does not require the user to hold a firearms licence. I do not accept that her letter to the Firearms Registry on 3 February 2015 is evidence that Ms John ever used a rifle to shoot animals at Bindaree Beef. I accept the evidence of Ms Trevithick that as a security guard, Ms John did not have access to a workplace rifle and used only a stun gun to put down animals at the abattoir.

43. On the evidence before me, I am satisfied that Ms John became irate when she attended Inverell Police Station on 31 January 2015 to hand in her firearms. Whilst I am not reasonably satisfied that she cut up her drivers’ licence at the police station or threatened to commit suicide or obtain an unlawful firearm, I am satisfied that she became upset and abusive when told her firearms would be dismantled. This is not appropriate behaviour by a person who has been granted the privilege of a firearms licence and is of particular concern when considered against the backdrop of police attendance at Ms John’s property in relation to domestic incidents.

44. It is common ground that the police evidence in this matter reveals a long history of domestic incidents between Mr and Ms John and, prior to this, between Ms John and her previous partner Mr Quinn. In particular, the most recent incident between Mr John and Ms John is of concern to me. Ms John agreed that on this occasion, namely 12 December 2014, Mr John physically assaulted Ms John by hitting her with a torch. At the time, Mr John’s rifle was near him (and not in the gun safe), and Ms John feared that he would use it to kill the family dog. Ms John agrees that when police officers attended the property in response to her request, ammunition belonging to Mr John was found unsecured in the property. It is undisputed that this incident resulted in the making of a final apprehended violence order that will not expire until December 2016 and that Mr John was charged with common assault.

41. Whilst Ms John and her husband have separated, it is Ms John’s evidence that she has told him that he could build on the property that is jointly owned and that, as joint owner, he is always welcome on the property. On this basis, I find that Mr John may continue to live on the property, either on a temporary or a permanent basis.

42. On the evidence before me, and having particular regard to the history of disputes between Mr John and Ms John, some of which have involved threats and physical violence, including a fear by Ms John that her husband might use his firearm to shoot the family dog, I have reasonable cause to believe that Ms John may not be able to personally exercise continuous and responsible control over firearms because of her domestic circumstances.

43. In reaching this decision, I have considered all the evidence before me. I have also taken into consideration the principles of the Firearms Act which clearly state that the possession and use of a firearm is a privilege and that the primary objective is public safety, which can be improved by imposing strict controls on the possession and use of firearms and promoting the safe and responsible use of them.

44. In reaching this conclusion, I am mindful of the observation made in Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156 that firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.

45. I have considered Ms John’s submission that as she lives on a rural properly, she requires a licence to put down injured animals. I am mindful of the inconvenience this may occasion Ms John, however, a firearm licence is a privilege conditional on the need to ensure public safety, which is why strict controls on the possession and use of firearms must be applied.

46. On this basis, I am satisfied that the decision of the Commissioner of Police to revoke Ms John’s firearms licence is the correct and preferable decision and that the decision under review is affirmed.

47. Having made this finding, it is not necessary to determine whether the Commissioner is correct in submitting that it is not in the public interest for Ms John to continue to hold a firearm licence.

48. It is similarly not necessary for me to make a finding at to whether Ms John breached s39 of the Firearms Act by keeping firearms in a safe to which her husband had access.

ORDER

53. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 February 2016