Johnson v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 185

CITATION:	Johnson -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 185
DIVISION:	General Division
PARTIES:	APPLICANT Aaron Johnson RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013124
HEARING DATES:	05/11/2001
SUBMISSIONS CLOSED:	11/05/2001
DATE OF DECISION:	11/06/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	He Kaw Teh v The Queen (1985) 157 CLR 523
REPRESENTATION:	APPLICANT P Conaghan, solicitor RESPONDENT C Capper, advocate
ORDERS:	The Commissioner’s decision to revoke Mr Johnson’s security industry licence is set aside.

Introduction
1 Mr Johnson has had a licence under the Security Industry Act 1997 (the Act) since 1991. Prior to his licence being revoked by the Commissioner of Police (the Commissioner) he had a Class 1A, 1B and 1C licence which expired on 10 June 2004.

2 The Commissioner revoked Mr Johnson’s security industry licence on 28 March 2001 on the grounds that he was no longer a fit and proper person to hold a security licence and that it is not in the public interest for him to hold such a licence.

Jurisdiction

3 The Tribunal has jurisdiction to review this decision under s 29(1)(c) of the Security Industry Act and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Issue

4 The Tribunal must decide whether the Commissioner’s decision to revoke Mr Johnson’s security licence was the “correct and preferable” decision based on any relevant factual material and any applicable written or unwritten law: s 63 ADT Act.

Facts

5 The factual matters which were not in dispute are that Mr Johnson was charged under s 41(1)(c) of the Firearms Act 1996 with a storage offence. That provision states that:
The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies:
(c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm
6 On 3 May 2001 Mr Johnson pleaded guilty to the charge. The Local Court found the charged proved and dismissed the matter. Mr Johnson has never been convicted of a criminal offence.

7 Mr Johnson lives with his wife and two year old daughter in a two bedroom home unit. The circumstances of the offence were that Mr Johnson had stored under his bed in the main bedroom, a green metal ammunition box containing:

· one by 20 round box of .45 ‘Centrefire’ rounds, containing 13 rounds;
· one by 20 round box of .38 calibre “Gold Dot’ rounds, containing 20 rounds;
· one by 20 round box of .38 calibre “Federal’ rounds, containing 20 rounds; and
· one by 20 round box of .38 calibre.
8 In oral evidence Mr Johnson said that the ammunition related to his shooter’s licence. He believed that as long as the ammunition was stored separately from the firearms, he was complying with legislative requirements. He agreed that the box was not of a type approved by the Commissioner, nor was it locked.

9 On 7 February 2002, the police stopped the car that Mr Johnson and his father, Raymond Johnson, were in. Mr Johnson gave evidence that his father had asked him to drive to Bondi to meet a colleague at about 9 pm. Mr Johnson snr was arrested that evening and Mr Johnson went home. Police officers searched Mr Johnson’s home later the same evening and found the ammunition under his bed.

10 Police also found a loaded pump action 12 gauge shot gun, a loaded 9mm semi automatic pistol, ammunition and seven “Taser” stun guns under the bed in the second bedroom. These firearms did not belong to Mr Johnson.

11 Mr Johnson’s father was staying with him at the time his home was searched. Mr Johnson gave evidence that his father turned up on Christmas Day 2000 and asked if he could stay. His father had been overseas for a number of years. Mr Johnson snr stayed in the second bedroom for approximately three weeks. Mr Johnson said he only went in there to get his daughter’s nappies or clothes which were stored there. He did not know his father was storing firearms under the bed and had never seen them before. He said he was working during the period when his father was staying and that he did not ask his father what he was doing.

12 Mr Johnson’s wife was not working during the period in which Mr Johnson snr was staying at their home. Mr Johnson conceded that the doors to the bedrooms were not locked and would have been accessible to his two year old daughter when the doors were not closed.

13 Mr Johnson is currently working in a position which does not require a security industry licence, however that position is temporary and he would prefer to be able to resume working in the security industry.

Other evidence

14 In a memorandum from Senior Constable Chapman of Internal Affairs to the Commander of the Security Industry Registry dated 6 February 2001, Constable Chapman states that:
Raymond Johnson is considered to be a well connected and extremely dangerous criminal, both internationally and domestically.

15 It was not put to Mr Johnson that he knew his father was an extremely dangerous criminal and I make no findings in relation to Constable Chapman’s assertion.

Relevant legislation

16 The Security Industry Act allows the Commissioner to revoke a person’s security industry licence in certain circumstances. The grounds of revocation relied on by the Commissioner appear in s 26 (1)(c) and (d) of the Act which states that:
A licence may be revoked:
(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.
17 Clause 18 of the Security Industry Regulation 1998 provides that the Commissioner may revoke a licence if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

Respondent’s submissions

18 Mr Capper on behalf of the Commissioner submitted that the Tribunal should have concerns about Mr Johnson’s fitness and propriety to hold a security industry licence because of the finding by the Local Court that he had not stored ammunition in accordance with legislative requirements. It was incumbent on Mr Johnson to ensure that unlawful activities were not taking place at his home. He should have made inquiries about his father’s comings and goings, particularly when a two year old child was placed in potential danger through the presence of loaded firearms under a bed. He was being wilfully blind to the possibility that his father was storing loaded firearms in the house.

Applicant’s submissions

19 Mr Conaghan on behalf of the applicant submitted that there was no evidence before the Tribunal which would give rise to any suspicion in Mr Johnson’s mind that there were loaded firearms under the bed in the second bedroom. The Tribunal cannot draw an inference from the presence of those firearms in Mr Johnson’s home that he knew that they were there or that he had a duty to ask his father whether they were there. It is not reasonable to expect Mr Johnson to search the room in which his father was staying for loaded firearms. Similarly, there was no evidence that it is not in the public interest for Mr Johnson to continue to hold a security industry licence.

20 Mr Johnson pleaded guilty to not storing his ammunition in accordance with legislative requirements. He now knows what these requirements are and will comply with them in the future.

Decision and reasons

21 The facts in this case are not in dispute. The only issue was whether any inference adverse to Mr Johnson can be drawn on the basis of these facts. Mr Capper for the Commissioner said that Mr Johnson was “wilfully blind” to the possibility that there could be loaded firearms in the second bedroom. In He Kaw Teh v The Queen (1985) 157 CLR 523 the High Court (Gibbs CJ, Mason, Brennan and Dawson JJ; Wilson J dissenting) discussed the expression “wilfully blind.” The Court’s reasoning in that case is not strictly relevant to these proceedings because that case concerned the interpretation of a statutory provision relating to mens rea in criminal proceedings. Nevertheless if I was satisfied that Mr Johnson either knew that his father had loaded firearms in the second bedroom or that he was wilfully blind to that possibility, those matters would be relevant to his fitness to hold a security licence.

22 On the basis of the evidence, I find that Mr Johnson did not know that his father had loaded weapons stored under the bed, nor did he wilfully shut his eyes to that possibility. Mr Johnson denied that he knew the weapons were there and there was no evidence of anything that would have aroused Mr Johnson’s suspicions in that regard.

23 The Local Court found that that Mr Johnson failed to store ammunition in accordance with legislative requirements. The Commissioner did not submit that this finding means that Mr Johnson is not a fit and proper person to hold a security industry licence or that it is not in the public interest for him to do so.

24 On the basis of all the evidence I am satisfied that Mr Johnson is a fit and proper person to hold a security industry licence and that it is not against the public interest for him to do so.

Order

25 The Commissioner’s decision to revoke Mr Johnson’s security industry licence is set aside.