Lloyd and Commissioner of Police

[2013] WASAT 162

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION:   LLOYD and COMMISSIONER OF POLICE [2013] WASAT 162

MEMBER:   MS N OWEN-CONWAY (MEMBER)

HEARD:   24 JUNE 2013

DELIVERED          :   2 OCTOBER 2013

FILE NO/S:   CC 262 of 2013

BETWEEN:   MICHAEL ANTHONY LLOYD

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Revocation of firearm licence ­ Application to review ­ Convictions for offences not involving violence or use of weapons or breaches of Firearms Act ­ No violence restraining order ­ Convictions including traffic offences ­ Relevance of convictions ­ Whether applicant is a fit and proper person to hold a firearm licence on all of the evidence before the Tribunal

Legislation:

Criminal Code of Western Australia, s 74A(2)(a), s 172(2), s 318
Evidence Act 1966 (WA)
Firearms Act 1973 (WA), s 5A, s 5A(3), s 11(1), s 11(1)(c), s 11(3), s 11(5), s 11(6), s 20, s 20(1)(a)(iii), s 22, s 29(2)
Road Traffic Act 1974 (WA), s 67(2)
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 9(a), s 17, s 24, s 27, s 27(3), s 29(1), s 29(1), s 29(3), s 32, s 73(1)

Result:

Reviewable decision to revoke set aside
Ancillary order to reinstate applicant's firearm licence
Ancillary order to return applicant's firearms

Summary of Tribunal's decision:

The respondent revoked the applicant's firearm licence on the basis that the respondent formed the opinion that the applicant was not a fit and proper person to hold a firearm licence.  The applicant had been convicted of several traffic offences, offences concerning the obstruction of public officers and disorderly behaviour in public. The respondent advanced the argument that the applicant's history of antisocial behaviour was not consistent with the community expectation of the fitness of a person to whom a firearm licence could be granted.  The Tribunal rejected the respondent's argument.  The Tribunal considered each offence alone and in combination, along with other evidence before the Tribunal concerning the applicant's conduct and character, for the purpose of forming an opinion on the fitness of the applicant to hold a firearm licence.  The Tribunal could not form the opinion, on the evidence before it, that the applicant was not a fit and proper person to hold a firearm licence for the purposes of the Firearms Act 1973 (WA).

The respondent's decision to revoke the applicant's firearm licence was set aside, and further ancillary orders were made to restore the applicant's firearm licence and return the applicant's firearms to him.

Category:    B

Representation:

Counsel:

Applicant:     Mr A Hockton

Respondent:     Snr Constable S Bagley (Acting as Agent)

Solicitors:

Applicant:     Angus Hockton Barrister and Solicitor

Respondent:     Commissioner of Police

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Byfield and Commissioner for Consumer Protection [2012] WASAT 217

Hughes & Bale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Ives and Plumbers Licensing Board [2013] WASAT 125

Maxwell v Dixon [1965] WAR 167

McGee v Chitty [2011] WASCA 125

Minitti v Commissioner of Police [2010] WASCA 198

Minniti and Commissioner of Police [2009] WASAT 22

Murphy and Commissioner for Consumer Protection [2012] WASAT 74

Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482

Rodriguez v Telstra Corp Ltd (2002) FCA 30

Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27

Spratt v Fowler [2011] WASC 52

Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)

The Registrar, Real Estate and Business Agents Supervisory Board & Anor v Barnett (unreported, WASCA, Library No 970426A, 26 August 1997)

Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL: 

The application

1. On 26 February 2013, the applicant made application to the Tribunal for review of the respondent's decision to revoke his firearm licence No 5010574, made on 9 July 2012 (reviewable decision). The applicant's application to the Tribunal for review was made pursuant to s 22 of the Firearms Act 1973 (WA) (Firearms Act). The respondent's decision to revoke the applicant's firearm licence was made pursuant to s 20 of the Firearms Act. The respondent made the reviewable decision upon the basis that the applicant is 'not a fit and proper person to hold' a firearm licence.

2. The applicant sought orders from the Tribunal setting aside the respondent's decision, directing the respondent to reinstate his firearm licence No 5010574 and directing the respondent return the applicant's firearms to him.

The Tribunal's jurisdiction

1. In making the application to the Tribunal, the applicant has exercised his statutory right to seek a review of the respondent's decision to revoke his firearm licence (s 22 of the Firearms Act). The application falls within the Tribunal's review jurisdiction (s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and the evidence before the Tribunal at the time of review (s 27 of the SAT Act).

2. In the exercise of its review jurisdiction, the Tribunal is not limited in its considerations to the material that was before the original decision‑maker (s 27 of the SAT Act), nor to a consideration of the original decision‑maker's reasoning alone (s 27(3) of the SAT Act). Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decision‑maker are conferred on the Tribunal in addition to the powers conferred on the Tribunal by the SAT Act. Section 29(3) of the SAT Act confers specific powers on the Tribunal in the disposition of the review application. Section 73(1) of the SAT Act confers power on the Tribunal to make ancillary orders or directions that the Tribunal considers appropriate for achieving the purpose for which it may exercise its primary power.

3. The Tribunal is not bound to apply the Evidence Act 1966 (WA), the rules of evidence or the practices and procedures of any courts of record (s 32(2)(a) of the SAT Act) but is bound by the rules of natural justice (s 32(1) of the SAT Act), and 'is to act according to equity good conscience and the substantial merits of the case without regard to technicalities' (s 32(2)(b) of the SAT Act). The more flexible procedure provided for by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has probative force (Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482; Rodriguez v Telstra Corp Ltd (2002) FCA 30 cited with approval in respect of s 32 of the SAT Act in Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27).

4. Further, the Tribunal is bound to 'ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding' (s 32(7)(a) of the SAT Act).  In conducting the proceedings, the Tribunal is to review decisions 'fairly and according to the substantial merits [of the case]' (s 9(a) of the SAT Act).

Proceedings in the Tribunal

1. The application was listed for an initial directions hearing on 21 March 2013 at which time, pursuant to s 24 of the SAT Act, orders were made to facilitate the filing of statements of issues, facts and contentions (SIFC) by each party; documents in support of the applicant's case; summaries of both parties' witness' evidence; and, in the respondent's case, documents relevant to the Tribunal's review of the reviewable decision.

2. On 11 April 2013, the respondent provided the following documents:

   1)copy respondent's revocation letter (9 April 2012);

   2)copy criminal and traffic history (undated);

   3)copy statement of material facts ‑ assault public officer (24 May 2008);

   4)copy statement of material facts ‑ disorderly behaviour in a public place (3 December 2008);

   5)copy statement of material facts ‑ unlawful damage and disorderly behaviour in a public place (29 October 2009);

   6)copy statement of material facts ‑ disorderly behaviour in a public place (12 May 2011);

   7)copy statement of material facts ‑ disorderly behaviour in a public place (16 March 2012);

   8)copy statement of material facts ‑ obstructing public officer (26 May 2012); and

   9)the respondent's SIFC.

3. On 9 May 2013, the applicant filed the following documents:

   1)copy letter Mr Anthony Mark Sangalli to the respondent (22 September 2006);

   2)copy letter Mr Ray Fairclough (21 September 2006);

   3)copy letter Mr Francis Tedesco to the applicant (5 September 2006);

   4)copy permit No 42809 issued by the Department of Lands, Planning and Environment of the Northern Territory to Mr Michael Anthony LLoyd (8 October 2012);

   5)copy letter Ms Marlene Sangalli (undated);

   6)copy adjustment to firearm licence issued by the respondent (14 December 2013);

   7)copy Northern Territory Police firearms enquiry (25 July 2012);

   8)copy registered firearms list for the applicant (8 October 2012);

   9)copy letter Ms Hayley‑Anne Simpson to applicant's solicitor (undated);

   10)copy letter Ms Michelle Todd of HD Diesel Mechanics Pty Ltd (24 April 2013);

   11)a summary of the applicant's proposed evidence; and

   12)the applicant's SIFC.

4. The application was listed for final hearing on 24 June 2013, at which time the applicant gave evidence and was cross‑examined.  No other witnesses were called and no other documents were tendered or received by the Tribunal.

An overview of the parties' positions

1. In respect of the facts, the respondent, in its SIFC, refers to and relies upon the statement of material facts in respect of each offence with which the applicant was charged and on the fact of conviction of certain of those charges.  The applicant referred to the surrounding circumstances of the offences of which he was convicted, the reason for the pleas made by him in each case, and the reason for the reduction in the charge.

2. As to the contentions, the applicant states in paragraph 21 of its SIFC that:

   The applicant takes no issue with the respondent[']s submissions as set out in paragraphs 18 to 32 and agrees with the general propositions as to the powers of the Tribunal and the definition of 'fit and proper' as set out in those paragraphs.

3. The applicant says that all of the offences for which the applicant has been convicted are relatively minor offences, in that none of them was dealt with on indictment and, in their context, are not representative of a character that suggests a disregard of the law or suggests that the grant of a firearm licence to him puts public safety at risk.

4. The respondent's conclusion (at paragraph 39 of his SIFC) refers to the proposition that the respondent advances, as the basis of the respondent's conclusion, that the applicant is not a person who is fit and proper to hold a firearm licence:

   Having considered all the circumstances, the respondent is of the view that the applicant has displayed a course of conduct over a continued period of time that is contrary to community expectations of the type of person who should qualify to hold a licence under the Act.  Insufficient time has elapsed since the recorded convictions for the applicant to have demonstrated a change in his behaviour.

Issue

1. The Tribunal must determine in the light of the scope, object and purpose of the Firearms Act, whether the applicant, given his convictions, is not a fit and proper person to hold a firearm licence for the purposes of s 11(1)(c) of the Firearms Act.

2. The Tribunal considers that the applicant is a fit and proper person to hold a firearm licence for the reasons referred to below.

Statutory framework

1. Public protection and safety from the misuse of firearms is central to the regulatory scheme provided for by the Firearms Act which provides for control over 'ownership and use of firearms by a system of licenses, permits and approvals' (McGee v Chitty [2011] WASCA 125, per Mazza JA at [31]). The discretionary power to issue a firearm licence, and revoke the same, is conferred upon the respondent. This discretionary power may be delegated to an authorised officer pursuant to s 5A(3) of the Firearms Act. The permitted delegate must be a member of the police force and must be affected by a signed instrument of delegation.

2. Although the signed instrument of delegation was not before the Tribunal, the Tribunal refers to s 29(2) of the Firearms Act which provides:

   In any proceedings under this Act a document or writing purporting to be, or to be a copy of or extract from, any licence, permit, approval or other document issued under this Act, or provided or produced to the Commissioner or a member of the Police Force in connection with any application or request for information under this Act 

   (a)is evidence which is admissible, and is to be accepted as to the matter contained in the document in the absence of proof to the contrary[.]

3. Where a member of the police force issues a letter of revocation of a firearm licence, issued pursuant to the Firearms Act, in which that member asserts that he is a delegate of the respondent, for the purposes of issuing the letter of revocation, such statement and letter is admissible evidence of the fact of delegation in this proceeding and is to be accepted as that fact in the absence of evidence to the contrary. On 9 July 2012, Inspector P Bond of the Western Australian Police Force signed and issued to the applicant a letter of revocation in which he noted that he was the respondent's delegated officer pursuant to s 5A of the Firearms Act. There was no evidence suggesting Inspector Bond was not the respondent's delegate or that he was not the author of the letter of revocation. The Tribunal finds that Inspector Bond was a delegate of the respondent and that he did issue the notice of revocation in the form of the letter dated 9 July 2012.

4. The letter dated 9 July 2012 identifies the basis upon which the revocation is made as being that a licence 'could not because of s 11 [of the Firearms Act] be granted … if the person were then applying for it' as provided for by s 20(1)(a)(iii) of the Firearms Act.

5. Section 20 of the Firearms Act provides:

   (1)Where the Commissioner is satisfied ­

   (a)that a person who is the holder of a licence …

   …

   (iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;

   …

   he may refuse to renew or may revoke any licence, permit or approval relating thereto …

   …

   (3)The Commissioner shall give notice in writing to the holder, where any licence, permit or approval issued or granted under this Act is revoked or varied, of the reasons for the decision.

6. Section 11 of the Firearms Act provides that the respondent:

   (1)… cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that …

   …

   (c)the person is not a fit and proper person to hold the … licence. (emphasis added)

7. Section 11(3) of the Firearms Act provides for the circumstances in which the respondent has 'sufficient' grounds to form the opinion that a person is not a fit and proper person to hold a firearm licence. None of the factors referred to in s 11(3) of the Firearms Act has application in this proceeding. The applicant does not have: any convictions for offences involving assault with a weapon (s 11(3)(a)(i) of the Firearms Act); any convictions for offences involving violence (s 11(3)(a)(ii) of the Firearms Act); any convictions for offences against the Firearms Act (s 11(3)(a)(iii)); and is not a person against whom a violence restraining order has been issued (s 11(3)(a)(iv) of the Firearms Act). The respondent does not rely upon an absence of mental or physical fitness for the purposes of s 11(3)(b) of the Firearms Act. Nor does the respondent rely upon an allegation that the respondent 'suspects, on the basis of an intelligence report or other information held in relation to that person, that the person is a threat to public safety' for the purposes of s 11(3)(c) of the Firearms Act.

8. Section 11(5) of the Firearms Act provides that the respondent 'may' form the opinion that the applicant is a fit and proper person to hold a firearm licence, notwithstanding the fact of a conviction of the kind referred to in s 11(3) of the Firearms Act. Section 11(6) of the Firearms Act further provides that the respondent is not limited by s 11(3) of the Firearms Act in forming an opinion as to whether a person is a fit and proper person to hold a firearm licence, and may continue to take into account any fact that could have been taken into account if that subsection had not been enacted.

9. The respondent is not restricted by the provisions of s 11(3) of the Firearms Act from considering all factors relevant to the assessment of whether a person is a 'fit and proper' person to hold a firearm licence. The expression 'fit and proper' incorporates the qualities of honesty, knowledge and ability (Hughes & Bale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127; The Registrar, Real Estate and Business Agents Supervisory Board & Anor v Barnett (unreported, WASCA, Library No 970426A, 26 August 1997) per Kennedy J; Murphy and Commissioner for Consumer Protection [2012] WASAT 74; Byfield and Commissioner for Consumer Protection [2012] WASAT 217; Ives and Plumbers Licensing Board [2013] WASAT 125). Of itself and standing alone, the term 'fit and proper person' carries no precise meaning (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Australian Broadcasting Tribunal and Bond) at [380] per Toohey and Gaudron JJ). The expression '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 expression may require an assessment of a person's character because it provides an indication of likely future conduct or reputation because it provides an indication of public perception as to likely future conduct (Australian Broadcasting Tribunal and Bond).

10. The applicant, in any case, must be assessed as being possessed of the requisite knowledge of the duty and responsibility 'devolving upon him as the holder of a particular licence under the Act' (Maxwell v Dixon [1965] WAR 167 per Hale J). The expression 'fit and proper person' gives the widest scope for judgment and for rejection of an application for a licence (Minitti v Commissioner of Police [2010] WASCA 198 (Minitti) at [11] per Pullin JA). In the case of the Firearms Act, the person must have the requisite knowledge of the duties and responsibilities of owning and using a firearm, as imposed by the Firearms Act, and must be assessed as having the character to be trusted to discharge those duties and responsibilities in the future, after the licence is granted.

11. Given that the respondent relies upon the applicant's history of convictions, the relevance of convictions to the assessment of whether a person is a 'fit and proper' person to hold a firearm licence was in issue before the Tribunal.  In Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli), Wheeler J made observations concerning the relevance of prior convictions in deciding whether a person was or was not 'fit and proper' to be licensed as a security agent pursuant to the Security and Related Activities (Control) Act 1996 (WA). Her Honour's observations were applied by this Tribunal in Wignall and Commissioner of Police [2006] WASAT 206 and in Minniti and Commissioner of Police [2009] WASAT 22 when assessing the relevance of convictions to the fitness of a person to hold a firearm licence, rather than in a vocational context in which Tavelli arose.

1. The Tribunal's adoption in a firearms matter of her Honour's observation in Tavelli (a vocational licence matter) is an appropriate guide by which the Tribunal may assess whether or not a person is fit and proper in the context of the exercise of a statutory discretion for the grant of a firearm licence (Minniti).

2. Relevantly, the application of the Tavelli principles to the assessment of whether a person is a fit and proper person to hold a firearm licence may be summarised as follows:

   1)    There can be no inflexible rules and no policy that restricts the exercise of the statutory discretion.

   2)    The statutory discretion is to be exercised anew in the circumstances of each application in light of the statutory framework.

   3)    A conviction, if serious by its nature, is relevant to the issue of whether the person is a fit and proper person to hold a firearm licence.

   4)    The conviction, if serious in the sense that it represents a course of disregard for the law so as to reflect particularly adversely on the character of the person who committed the offence, is relevant to the issue of whether a person is fit and proper to hold a firearm licence (Minniti).

3. The questions for the Tribunal in this proceeding are:

   a)whether the nature and circumstances of the applicant's convictions are sufficiently serious in the sense that they represent a course of disregard for the law so as to reflect particularly adversely on the character of the applicant; and

   b)whether the applicant's character and reputation, as disclosed by those convictions, along with all of the circumstances before the Tribunal, would suggest that it is not in the interest of public safety that the applicant be granted a firearm licence.

The respondent's position

1. In this case, the respondent relies upon the nature, circumstances and the fact of the applicant's convictions, to contend that the applicant is not a fit and proper person to hold a firearm licence. The applicant did not rely on s 11(3) of the Firearms Act. The respondent asserted that the applicant's behaviour, as demonstrated by the convictions, established that the applicant is not a fit and proper person to hold a firearm licence. When pressed, the respondent relied upon 'antisocial' behaviour or a course of conduct that is contrary to community expectations. The respondent sought to persuade the Tribunal that the fact of the applicant's convictions alone support the assertion that the applicant is not a person who may be trusted to hold a firearm licence responsibly; respect the rights of others; respect authority; and comply with the laws of the land, which the respondent asserted is the way in which the Tribunal should assess a person's fitness to hold a firearm licence.

2. There was no evidence before the Tribunal that the applicant had breached the Firearms Act or that his conduct as a firearms owner and user had ever been called into question. There was no direct evidence that would suggest that the applicant could not be entrusted to comply with the Firearms Act or to suggest that he was an irresponsible firearms holder.

3. The respondent advanced the contention that the correct question is whether the nature, circumstances and fact of the applicant's convictions established that the applicant is not likely in the future to abide by the general law, including the Firearms Act, is a person who does not respect the rights of others or persons in authority, or is a person who fails or is likely to fail to comply with the law generally. For the reasons referred to above, these are not the correct questions, and the correct questions are those identified above at [30].

The facts

1. The applicant is currently approximately 24 years of age.  The applicant has a number of convictions.  The applicant's evidence concerning those convictions is referred to below, along with the applicant's submissions as to the relevance of the convictions to the applicant's fitness to hold a firearm licence.

2. The applicant had been convicted of a number of traffic offences, including driving with a blood alcohol reading in excess of 0.08% (15 March 2008) and driving whilst his driver's licence was suspended (15 March 2008).  The applicant's driver's licence was suspended following a conviction for dangerous driving on 29 December 2007.  At this time, the applicant was approximately 18 or 19 years old.

3. The applicant was also charged and convicted of four offences for disorderly behaviour in public, contrary to s 74A(2)(a) of the Criminal Code of Western Australia (Code), which arose out of incidents on the following dates:

   •3 December 2008;

   •29 October 2009;

   •12 May 2011; and

   •16 March 2012.

4. The incident on 3 December 2008 involved an argument between the applicant and his younger brother.  Police were not called to the incident, but were in the vicinity attending to an unrelated matter.  The applicant gave evidence that the incident involved an argument and a fight between him and his younger brother.  The applicant gave evidence, consistently with his statement summary and submissions, that his younger brother hit him and split his lip.  The applicant gave evidence that he gave chase to his brother but did not assault him.  The statement of material facts does not make reference to the details of the 'fight' referred to therein, but it does record that the applicant refused ambulance assistance for minor injuries and that the other person (the applicant's younger brother) was the subject of a separate summons.  The Tribunal infers, from these statements in the statement of material facts, that the applicant had received injuries from his younger brother in the fight, which is consistent with his statement to the Tribunal that he was punched by his younger brother, and split his lip.  The Tribunal infers that the applicant's brother did not receive any injuries, as no injuries were referred to in the statement of material facts and the Tribunal would have expected a reference thereto if that had been the case.  The respondent did not challenge the applicant's statement of the circumstances surrounding this incident.  The applicant entered a plea of guilty at the earliest point in time.  No explanation was given for the guilty plea, but the Tribunal infers, consistently with the applicant's evidence in relation to other offences, that he recognised that he had been engaged in offensive behaviour and did not wish to take issue with the charge.  The applicant did not engage in violent conduct, and the applicant stated in evidence that the friction between himself and his younger brother was soon forgotten.

5. The incident on 29 October 2009 arose out of an incident where damage had been caused to a taxi outside a nightclub in Hillarys Marina carpark.  The applicant was accused of causing the damage, but denied it.  When the police approached the applicant, the statement of material facts notes that the applicant became 'verbally abusive' and 'aggressive' towards the police.  He refused to identify himself and denied any wrongdoing.  The verbal abuse and obscenities shouted by the applicant are detailed in the statement of material facts.  The applicant was charged with disorderly behaviour and criminal damage.  The criminal damage charge was dismissed consistently with the applicant's denial of wrongdoing.  The applicant pleaded guilty to the disorderly behaviour charge and accepted that he had engaged in offensive behaviour.  There was no evidence before the Tribunal that the applicant's aggression was anything other than verbal aggression and no evidence supported a conclusion that the applicant was involved in criminal damage to property.

6. The applicant admitted under cross‑examination that, generally, alcohol did contribute to his behaviour on these instances, but denied that he had a 'drinking problem', as was put to him by the respondent.

7. On 12 May 2011, the applicant was again charged with disorderly behaviour, again at Hillarys Marina.  The statement of material facts states that the applicant had been ejected from 'Bar 120' nightclub.  The applicant gave evidence, consistently with his summary of evidence, that he had left the club temporarily to accompany a friend, and when they tried to return, they were refused entry.  The applicant agreed under cross‑examination that he had been drinking alcohol.  He also agreed that he was rude and uncooperative and as a consequence, entered a plea of guilty at the first opportunity.  The statement of material facts substantiates his rudeness and his obnoxious yelling of obscenities.  However, no violence was involved and no threat of violence occurred.

8. On 16 March 2012, the applicant was again charged with disorderly behaviour, constituted by urinating in a public laneway.  The applicant entered a plea of guilty at the first opportunity.  No violence and no threat of violence was involved.  The applicant had engaged in verbal abuse.

9. None of these offences and traffic offences, of themselves or together, persuade the Tribunal that the applicant holds a general disregard for the law, or would pose a public safety threat if issued with a firearm licence.  The applicant's vitriolic expressions towards the police are more in the nature of drunken abusive rants by a person lacking maturity.

10. On 24 May 2008, the applicant was charged with assaulting a public officer contrary to s 318 of the Code. The charge did not proceed and instead, through agreement with the prosecution, the applicant pleaded guilty to a lesser charge of obstructing a public officer contrary to s 172(2) of the Code. The applicant received a spent conviction and a $700 fine. The statement of material facts notes that the applicant was the passenger in a vehicle that had been 'driving dangerously'. There was no suggestion that the applicant had been driving dangerously. A police officer 'noticed an object' in the vehicle which he thought was a knife. The officer informed the occupants of the vehicle, including the applicant, that he intended to search the vehicle. The applicant gave evidence that he argued with the police officer and insisted that there was no knife in the vehicle. The statement of material facts provides that the applicant pushed the police officer twice. These facts were not agreed to by the applicant in the criminal proceedings. It is also recorded, and was agreed at the hearing before the Tribunal, that the police officer fired two taser barbs at the applicant, and the statement of material facts further asserts that the applicant had no recollection of the event after he stepped out of the vehicle. The applicant agreed with the respondent in cross‑examination that he received two barbs from the taser. The respondent's counsel put to the applicant that he was aggressive and had assaulted the police officer. The applicant did not agree, and said that there was direct witness evidence available in the criminal proceedings that would have been led at the hearing of the charge of assaulting a public officer which tended to establish that the applicant did not assault the police officer. He asserted in cross‑examination that that evidence was the reason that the charge of assault did not proceed. The respondent asked the Tribunal to infer, from the fact that two barbs of a taser had been administered to the applicant, that the applicant had become aggressive and had pushed the police officer. The respondent asserted to the Tribunal that it followed, from the administration of the taser barbs, that the applicant was acting violently, and police policy or guidelines on the use of tasers would not have been complied with, if used merely to stop the applicant arguing with the police officer. The respondent asked the Tribunal to infer that the applicant must have been violent, or acting in a threatening manner. The Tribunal declined to draw the inference because:

    a)no evidence of the police policy or guidelines on the use of tasers were before the Tribunal;

    b)no evidence from the relevant police officers was led before the Tribunal; and

    c)the police had not negated all other possible inference, such as mistaken belief that the applicant was acting violently, or that the taser had been used other than in accordance with the police policy or guidelines.

11. The use of a taser, other than in accordance with the police policy or guidelines, is not unknown in the courts (Spratt v Fowler [2011] WASC 52). The Tribunal finds, on the evidence put before it, that the applicant did not act violently towards the police officer on this occasion.

12. On 24 May 2012, the applicant was again charged with obstructing a police officer.  On this occasion, the applicant was again a passenger in a vehicle.  The driver of that vehicle was asked to undergo a breath analysis, but there was a lengthy delay in administering the test.  The applicant sprayed or poured the contents of an alcoholic drink over/down the driver's face and then attempted to do it on a second occasion.  The obvious consequence of such action is to allow the driver to cast doubt upon any analysis from a breath analysis test.  The applicant became agitated and the statement of material facts reports that he was 'aggressive' to the police, and pushed and swore at them.  The applicant was again tasered.  He was not charged with assault, but did enter a plea of guilty to the obstruction charge.  Again, the respondent asked the Tribunal to draw an inference, from the fact that a taser barb had been administered to the applicant, that the applicant had been violent, and, again, the Tribunal declined to draw the inference that the applicant was violent or dangerous for the reasons referred to above.  The applicant received an eight month term of imprisonment which was suspended for 15 months.

13. On 21 September 2012 the applicant was charged with two traffic offences. One offence involved driving with a blood alcohol level greater than 0.05% and the other offence was for driving in breach of the conditions of an extraordinary driver's licence (obtained on 12 August 2008). He was convicted of both offences on 2 October 2012. As stated earlier, the applicant was disqualified from holding a driver's licence on 21 April 2004. He was further disqualified for refusing a breath analysis in breach of s 67(2) of the Road Traffic Act 1974 (WA) on 15 August 2009, and again disqualified on 13 February 2012 for driving recklessly on 5 November 2011. Again, alone and together, the Tribunal does not consider these offences to be indicative of a characteristic disregard of the law, but, rather, to be consistent with the conduct of an individual between the age of 18 and 23 who was rather slow to mature.

14. The applicant gave evidence that he was informed, on or about 21 September 2012, that his father's cancer had returned and that he had a short period of time to live.  The applicant gave unchallenged evidence that his father died shortly after, on 1 October 2012.  On receiving this news, the applicant consumed a large amount of alcohol and, in that state, drove a vehicle.  The applicant gave evidence that he was deeply upset over his father's illness.  The applicant also gave evidence that, since this episode and his father's death, he had matured considerably, helped along by the fact that he had formed a new personal relationship.  The respondent, however, asserted that the only reason the applicant has stayed out of trouble with the law is that he is still the subject of an eight month imprisonment term which has been suspended until late 2013.

15. The applicant also gave evidence that he is a qualified diesel mechanic and is employed with HD Diesel Mechanics Pty Ltd at Christmas Creek mines in the North West of the State. The Tribunal also was referred to the letter from the applicant's employer corroborating the applicant's evidence. The applicant gave evidence that he has never been unemployed. This statement was not challenged.  The applicant also gave evidence that his father, uncle and grandfather all had an interest in firearms and that prior to the respondent's revocation of his firearm licence, the applicant had kept his firearms in a safe at his grandfather's home.  The applicant relied on a letter written by the applicant's grandmother to corroborate his evidence on this issue.  The applicant did not call his grandmother, but the respondent did not challenge the contents of the letter. The applicant also produced statements from his uncle who has applied to have his gun transferred to the applicant.  This letter perhaps gives rise to an inference that the applicant's uncle considers the applicant a sufficiently responsible firearms owner to be trusted with his own firearms.

16. As to the applicant's new stable personal relationship, the applicant relied upon a letter he asserted was written by his partner, Ms Hayley‑Anne Simpson.  The letter, said to be from Ms Simpson, contains the statement that she has known the applicant for two years and since the passing of his father, he had become a responsible, calm and relaxed gentleman with a kind heart. Ms Simpson was not called to give evidence, but the statements in her letter were not challenged by the respondent.

Consideration

1. The applicant has a history since 2008 of becoming loud and argumentative when challenged.  However, there have not been any instances of violence.  These incidents have usually occurred when the applicant has consumed alcohol.  The incidents have not always involved police officers or figures of authority and, on one occasion, involved an argument that he had with his younger brother.

2. On the last occasion of 21 September 2012, the applicant gave evidence that he had recently discovered that his father's cancer had returned and that his prognosis was terminal.  The applicant dealt with his sadness by the consumption of alcohol and was found to have been driving with a blood alcohol reading in excess of 0.05.  The applicant's father died on 1 October 2012 and, since that date, the applicant has committed no offences, has begun to recover from his father's death and has formed a new and stable personal relationship.

3. In his evidence, the applicant admitted that at times he has been vocal and unreasonable, but he maintains that he is a careful, law‑abiding firearms owner, is a good employee at Christmas Creek mines for HD Diesel Mechanics Pty Ltd, has not had any period of unemployment and is generally a responsible man.

4. The Tribunal places little weight on the letter evidence said to be from Ms Simpson.  Ms Simpson was not called as a witness and the Tribunal considers that her personal relationship with the applicant may well colour her view of the applicant's character and qualities.  The Tribunal places little weight upon the letter evidence of the applicant's grandmother and uncle, save to say that the letters suggest that they feel confident that the applicant is a trustworthy and responsible firearms owner.  The Tribunal may have been able to place additional weight upon their letters had they been called to give evidence.  The Tribunal placed some little weight on the letters because the facts of the letters were not the subject of challenge by the respondent and because there was no complaint about the applicant as a firearms owner.

5. The Tribunal must give consideration to whether the applicant is a fit and proper person to hold a firearm licence on all of the evidence before it, not merely on the basis of the convictions and the statements of material facts concerning the charges put before the Tribunal by the respondent.

6. In this case, the applicant has presented as a person whose history suggests that he is a diligent, skilled employee, has no convictions involving violence, weapons or a contravention of the Firearms Act and has not been the subject of a violence restraining order, notwithstanding, on his own admission, episodes when he has been loud and unreasonable. The Tribunal finds that the convictions all involved alcohol, but they are not so serious as to reflect a characteristic disregard of the law. The convictions, in the context of all of the evidence, do not establish a disregard of the law generally, or that the issue of a firearm licence to the applicant poses a threat to public safety. The Tribunal finds that the applicant's episodes of rude, uncooperative and unreasonable behaviour, fuelled by alcohol, are understood by the applicant to be obstructive and that, whatever the reason, he has matured somewhat and has gained insight into the ramifications of his loud and unruly behaviour when challenged.

1. Whilst the Tribunal does not condone the applicant's uncouth behaviour, the Tribunal does not consider any one offence, or any combination of the offences of which he was convicted, as disclosing a characteristic disregard of the law that reflects particularly adversely on the applicant or is suggestive that public safety may be at risk if the applicant is granted a firearm licence.

Conclusion

1. For the reasons referred to above, the Tribunal does not form the opinion, on the evidence before it, that the applicant is not a fit and proper person to hold a firearm licence for the purposes of s 11(1) of the Firearms Act. The Tribunal is satisfied, on the evidence before it, that the respondent's decision to revoke the applicant's firearm licence No 5010574 is not the correct and preferable decision, pursuant to s 20(1)(iii) of the Firearms Act.

Orders

1. For the reasons given above, the Tribunal makes the following orders:

   1.The decision made by the respondent's delegate to revoke the applicant's firearm licence No 5010574, on and by letter dated 9 July 2012, is set aside.

   2.The respondent shall forthwith reinstate the applicant's firearm licence no 5010574 on the same terms and conditions on which it was originally issued.

   3.The applicant shall return the applicant's firearms upon reinstatement of the applicant's firearm licence, or as soon as is practicable thereafter.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS N OWEN-CONWAY, MEMBER