May v Commissioner of Police

[2001] NSWADT 82

CITATION:	May -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 82
DIVISION:	General Division
PARTIES:	APPLICANT Kevin John May RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003220
HEARING DATES:	29/08/2000
SUBMISSIONS CLOSED:	08/29/2000
DATE OF DECISION:	05/22/2001
BEFORE:	Lees M - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes Act 1900 Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms (General) Regulation 1997 Security Industry Act 1997
CASES CITED:	Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 O'Sullivan & Farrer (1989) 168 CLR 210 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	1. The decision of the Commissioner of Police to revoke Mr May's firearms licence is affirmed.

Background
1 Mr May applied to the Administrative Decisions Tribunal (the Tribunal) on 22 June 2000 for review of the decision dated 30 May 2000 to revoke his firearms licence made by a delegate of the Commissioner of Police (the Commissioner).
2 The Tribunal’s jurisdiction derives from sections 75 of the Firearms Act 1996 (the Act) and 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).
The relevant law


3 Section 3 sets out the principles and objects of the Act. Section 3(1) provides:
(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,….
4 Section 11(5)(b) of the Act provides:
(5) A licence must not be issued to a person who:

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or ….


5 Section 12(4) of the Act provides
Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:
(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and
(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
Table ……
Reason: primary production
The applicant must:
(a) be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and
(b) state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).
Reason: animal welfare
The applicant must be: …………
(d) an owner, transporter, drover or other handler of animals who may need to destroy animals to avoid suffering.
6 Section 24(2) of the Act provides:
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
….
(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.
7 Clause 5 of the Firearms(General) Regulation 1997 (the Regulation) provides for offences that disqualify applicants . It states:
For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or …..
(b) ….
(c) Offences involving violence
An offence committed under the law of any Australian or overseas jurisdiction:
(i) involving the infliction (or attempted infliction) of actual bodily harm to another person, and
(ii) in respect of which, either the convicted person has been sentenced to imprisonment for 28 days or more, or a penalty of $200 or more has been imposed on the person.
8 Clause 17 of the Regulation reads
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.

The evidence


9 In August 1998 Mr May was issued with a category A & B licence. The genuine reasons Mr May relied upon in his application were primary production and animal welfare.

10 On the 5th November 1999 Mr May was convicted in the Tamworth Local Court of four offences: two counts of common assault and two offences involving the use of firearms - ‘possession of a loaded firearm endangering life in a non public place’ and ‘firing of a firearm in a manner likely to cause injury’. For these four offences, Mr May was put under self-recognizance of $1000 and good behaviour for 12 months. There was a fifth charge of ‘failure to surrender firearm’ and this was dismissed under the former s 556A of the Crimes Act 1900 (NSW).

11 The convictions relate to Mr May being found to have shot his firearm over the heads of and near two young men on his property in April 1999.

12 Mr May appealed the convictions and on the 16th February 2000, the District Court dismissed the appeal and confirmed the convictions and penalties imposed.

13 As a result of the incidents giving rise to Mr May’s offences, Mr May’s firearms were confiscated and his firearms licence was revoked.

14 The parties provided numerous documents to the Tribunal. In addition to Mr May’s application and covering letter seeking review, the Tribunal was provided with:
- Mr May’s reapplication for an individual firearms licence dated 16th May 1998;

- signed copies of police records of interview with the two young men, Mr Enks and Mr Wilson, dated 18th and 19th April 2000 respectively;
- unsigned copy of police record of interview with Mr May dated 15th May 1999;
- signed statements by Senior Constable N. A. Longworth concerning Mr May’s complete denial of the alleged incident and initial denial of his possession of firearms additional to those seized and subsequent surrender of those firearms at a later date;
- copy of 3 page Police Service Breach Report concerning alleged incident;
- 8 pages of ‘Charge Summary’ from Computerised Operational Policing System (COPS) records;
- NSW Police Service notices of suspension of Mr May’s firearms licence, dated 11 May 1999, 23rd October 1999 and 5th November 1999 and 2 attached pages dated 22 December 1999 detailing Mr May’s convictions for the charges and the Appeal Court’s orders relating to the five weapons Mr May had been previously licenced to possess;
- firearm disposal order dated 23rd October 1999;
- copies of five summonses addressed to Mr May dated 20 May 2000 commanding he appear at the Walcha Court on five charges;
- copy of Firearms Registry revocation of licence order dated 9 December 1999 and affidavit of service;
- copy of statement of reasons for the decision to revoke dated 9th December 1999;
- a copy of Mr May’s letter dated 1 May 2000 to the Manager of the Firearms Registry seeking internal review of the decision to revoke his firearms licence together with attached copies of a statement prepared by Mr May at his barrister’s request and 4 additional statements in support and 3 personal references;
- copies of Mr May’s letters dated 13th May 1999, 8th November 1999 and 6th June 2000 to the Firearms Registry;
- copies of 13 written statements and references from ‘friends and relatives’ of Mr May, apparently provided for Mr May’s present purposes, two being from two of the same men who had provided Mr May with earlier statements in support;
- result of Appeal to the District Court, letter from Registrar, Newcastle District Court Criminal Registry dated 9 March 2000 and copy of ‘Final Result’ document signed by Coleman QC DCJ; and
- copies of three signed ‘Issue’ reports of Senior Constable N. A. Longworth dated 22nd December 1999 and 13th and 14th April 2000 referring to proposed revocation of Mr May’s wife’s firearms licence.
15 Mr May represented himself before the Tribunal with some assistance from his wife Mrs May. Mr May also gave oral testimony before the Tribunal.

16 Mr May began his evidence by reiterating he was innocent of the charges for which he had been convicted.

17 In his evidence Mr May maintained that he takes issue with a number of the facts asserted by the young men and believes the police did not investigate the incident sufficiently to ascertain the correctness of those facts. Accordingly he remains critical of the police investigation into the incidents. He was also critical of the solicitor he instructed at the original trial. Mr May asserted that the Appeal Court allowed the matter only 15 minutes and that his appeal was unsuccessful because he had ‘run out of money’.

18 Since 1968 Mr May has run a 1260 acre property at Niangala, New South Wales. He runs cattle and goats and Mr May described the property as consisting of 50% scrub. He uses his guns mostly ‘to keep pigs under control’. One of Mr May’s documents states that he has used firearms for 59 years and considers himself a careful and responsible shooter.

19 Senior Constable Longworth’s record states that when he first questioned Mr May about the young men’s allegations Mr May denied any knowledge of the incident. Mr May was issued with a notice suspending his firearms shooter’s licence. Two of his guns were confiscated at the same time. Mr May refused to answer questions about the remaining three firearms he was registered as possessing stating that he had got rid of them and declining to say anything further.

20 Several days later contact was made again between Snr Constable Longworth and Mr May following which Mr May surrendered the three remaining firearms to Snr Constable Longworth.

21 In evidence before the Tribunal Mr May stated that he had been out shooting for pigs on the afternoon in question.

22 In evidence Mr May agreed he had in fact had a verbal altercation with the young men on the afternoon in question. He believed they had been chasing his cattle. He believed these young men had been rude to him on a previous occasion after Mr May had ‘chipped them’ about leaving rubbish on the property and warning them about trespassing on his property. His evidence states that during the more recent altercation he had used stronger words about reporting their trespassing to the police and that they were not to go ‘further up the creek’ because he would be returning shortly with his gun to hunt for pigs. Mr May’s evidence was that he returned some 15 minutes later and the young men had gone.

23 Mr May believed he did not have a temper but when he was younger he might have a fight because ‘if I’ve got an opinion I’ll tell it’.

24 On being asked why he had not told Snr Constable Longworth on 11th May about the verbal altercation with the young men Mr May stated he ‘did not think it was necessary’.

25 Mr May agreed he had become upset when Snr Constable Longworth confiscated his firearms licences and two of his guns on 11th May 1999 after questioning him about the young men’s allegations. In relation to his not handing over the three remaining weapons that were in his gun lockers on that day, Mr May disagreed that he had been ‘foxing’ with the policeman. Mr May stated he believed ‘the policeman had all the guns’.

26 Mr May was very keen to persuade the Tribunal he was suitable to have a firearm licence producing numerous statements in support and references. He also produced an old football trophy he was awarded for being Newport Football club’s best and fairest player one year.

27 Mr May asked why, if he was a risk to the public, had he previously been issued with firearms licences.

28 Mr May submitted that his licence be returned to him on the basis there were ‘special circumstances’ drawing an analogy with driving offences and licences being ‘returned because of livelihood’. In his case, he submitted the need for the licence was ‘to control noxious vermin and to humanely dispose of injured or diseased stock’. These are Mr May’s interests in having a firearms licence.

29 In his documents, Mr May submitted he was a responsible citizen with an unblemished record worthy of holding a gun licence.

30 Mr May responded to the reference in the police documents to his having a criminal record and sought to explain briefly some of the charges involved – one from the 40s, one from the 50s and one from 1990. The earlier charges related to the use of firearms and assault. Mr May was acquitted in relation to one charge and another charge was withdrawn. The evidence as to the outcome of the third incident was not clear.

31 Mr Tunks submitted there were several bases on which Mr May’s licence was correctly and properly revoked by the Commissioner.

32 Mr Tunks submitted that the principles and objects of the Act provide guidance in the decision making process. He referred expressly to section 3 of the Act and its focus on public safety and the need for strict controls to promote safe and responsible storage and use of firearms. He submitted that public safety was at the basis of the Commissioner’s decision and should be at the basis of the Tribunal’s decision.

33 Mr Tunks referred to the Act’s parallel provision to s 24(2)(a) in the Security Industry Act 1998 (NSW) which provides the decision maker with the discretionary power to revoke a licence ‘for any reason for which the licensee would be required to be refused a licence of that class’, for example for having committed a prescribed offence in the relevant period, and the Tribunal’s decision of Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 in that regard.

34 Mr Tunks also suggested Mr May no longer meets the test of a fit and proper person referring to the decisions of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 and that it was not in the public interest for Mr May to continue to hold a licence referring to the decisions of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 and O’Sullivan & Farrer (1989) 168 CLR 210.

35 Mr Tunks submitted that it was appropriate to consider and weigh up Mr May’s interests with those of the wider community. Mr Tunks submitted that public safety is the paramount consideration and that the system of firearms controls was intended to be very strict. He submitted also that the community expects that a firearm will not be used as a weapon.

36 Mr Tunks submitted that Mr May’s recent offences are very serious ones and that the incident was potentially catastrophic. He submitted that Mr May was evasive and ‘foxing’ with the policeman trying to investigate the allegations.

37 Mr Tunks submitted also that it was significant Mr May showed no contrition for any of his actions or behaviour and acknowledged no wrongdoing and that he was evasive and deceptive in the way he dealt with the police. Mr Tunks submitted that such actions raised a question of Mr May’s honesty and were not those of a responsible law abiding firearms user as required by the Act.

38 Mr Tunks conceded Mr May is respected and well regarded in the community and is of good character as evidenced by the numerous references provided in this regard. Mr Tunks believed that these documents were prepared for the purposes of the criminal proceedings not in relation or for the purpose of the firearms licence and that this was significant.

Findings and Reasoning


39 For a licence to possess or use a firearm, an applicant must satisfy the Commissioner s/he has a ‘genuine reason’ for doing so (s 12). Clearly, at the time his application for a licence was made Mr May established his ‘genuine reason’ as a licence was duly granted.

40 Part of Mr May’s case for having his firearms licence returned was based on the genuine reason/s he had previously established, namely primary production/animal welfare. This was not helpful to Mr May as the issue was not whether he be granted a licence but whether his existing licence should be revoked. Different considerations apply.

41 Related to this point is Mr May’s submission that his licence be returned to him on the basis there were ‘special circumstances’, drawing an analogy with driving offences and licences being ‘returned because of livelihood’. Such a basis is not expressly included in the legislation. Even as a possible factor in the exercise of the available discretions to revoke a licence, the fact the use of a firearm is or may be helpful as far as a person’s livelihood is concerned is, in Mr May’s circumstances, not sufficient or persuasive on its own or when considered with other factors.

42 The fact a person is fit and proper for a particular licence at one point in time does not mean that they are always so. Similarly, the fact that at one point in time it is not contrary to the public interest that a person is licenced for a particular purpose does not mean that at another point in time it may be contrary to the public interest for that person to remain licenced. Any number of intervening events and circumstances may give rise to these changes.

43 In relation to Mr Tunks’ submission regarding s 24(2)(a) and indirectly s 11(5) and cl 5, it is my view that the power to revoke may not be exercised in circumstance where a person has been found guilty of an offence subsequent to the application and granting of a licence.

44 In total Mr May provided 20 statements or references from 17 people for the purposes either of his criminal appeal or in support of his applications for review of the decisions to revoke his firearms licence. It is only clear, either expressly or implicitly, that 4 of the 17 writers were aware of Mr May having been charged and convicted of the offences. Only three of those four expressly addressed the issue of Mr May’s character – Mr Carl Locke, Mr Kevin Forbes (both friends of Mr May’s for about 30 years) and Mrs Phyllis May, his wife of 50 years. These referees described Mr May as ‘responsible’, ‘of the highest integrity’, ‘fit and proper’ to hold a shooter’s licence, and ‘of good repute and excellent character’.

45 From the remaining 14 documents, it can be concluded that Mr May has been a good and generous father and father-in-law, a helpful neighbour and a community-minded volunteer. Several of the writers referred to their own observations of Mr May’s competence and safety awareness in relation to his firearms.

46 Of the writers of these 14 documents it cannot be concluded with certainty how much or how little they knew about the circumstances leading to Mr May seeking their support. One indicated she wrote in support of Mr May’s application for ‘renewal’ of his firearms licence; others made no mention of the basis on which they had been asked to prepare their documents in support. This likely lack of knowledge must diminish the weight these documents can serve for Mr May’s present purposes.

47 I accept Mr Tunks’ submissions that the evidence before the Tribunal established that Mr May was evasive and unhelpful in his dealings with the police surrounding the incident and the surrendering of the firearms. I appreciate that Mr May was upset at the relevant time and was subsequently critical of the steps taken by the police but before the Tribunal Mr May did not appear to be at all regretful about any aspect of the altercation with the young men, incident or no incident, or his dealings with the police. He appeared to believe that there was nothing wrong or dishonest with his selective provision of information to the police.

48 The facts of Mr May’s offences cannot be ignored despite Mr May’s continuing claim of innocence. This Tribunal is left with the facts of the convictions and their confirmation on appeal. This Tribunal cannot go behind the convictions and make findings of fact relating to the same incidents. Although Mr May maintains his innocence of the charges, he has not challenged the fact he has been convicted. The convictions are a relevant consideration in the Tribunal’s exercise of the revocation discretions.

49 The nature of the offences committed by Mr May cannot be downplayed; they must be taken into account in determining the issue whether Mr May should be licenced or not. The offences are serious. They involved behaviour which was dangerous and unsafe. The safety of two members of the public was compromised. I agree with Mr Tunks that the incidents as found by the courts were potentially catastrophic. Such behaviour does not accord with the underlying principles of the Act.

50 In Commissioner of Police v Toleafoa ([1999] NSWADTAP 9, a security industry licencing matter , the Tribunal's Appeal Panel stated (at 25) that the public interest is:

'. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual....'.

51 The Tribunal found in Ward v Commissioner of Police, New South Wales Police Service [2000]NSWADT 28 that these comments are equally applicable in the context of the Act and that the 'public interest' in relation to the holding of a firearms licence is referable to the objects and principles set out in Section 3 of the Act.

52 The interests of the public in circumstances such as these include its interest in its own safety, in maintaining the principle that individual access to firearms is a conditional privilege not a right and its related interest in tight, strict and fair control of the presence of weapons in the Australian community. These interests are clearly reflected in the principles and objects of the Act.

53 Firearm possession and use is regarded as a privilege that is conditional on the overriding need to ensure public safety. The behaviour for which Mr May was convicted involved the abuse of that privilege. The Act imposes strict controls on the possession and use of firearms and seeks to promote the safe and responsible storage and use of firearms. The behaviour for which Mr May was convicted involved unsafe and irresponsible use of a firearm. This behaviour goes to the heart of the public’s interest and concern for safety.

54 There is no doubt that Mr May has a genuine reason for wanting to be licenced to possess and use firearms. I accept, given the supportive statements and references provided for Mr May, that he has positive and valuable personal qualities and that he has been a safe and responsible firearms user in the past. These factors however are not sufficient to displace or outweigh the behaviour for which he was convicted or the possibility that such behaviour could happen again. Mr May’s evidence was not sufficiently persuasive to enable the conclusion that such an incident could not possibly happen, or possibly happen again. Such a possibility is clearly contrary to the public interest. Where there has been, or is, a possibility of a threat to the public's safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm.

55 Accordingly I agree with Mr Tunks’ submission on behalf of the Commissioner that it is no longer in the public interest that Mr May continue to hold a firearms licence.

56 In relation to Mr Tunks’ submission that Mr May is no longer a fit and proper person to hold a licence despite his being generally regarded as of good character by members of his local community, given the above finding and decision based on the question of public interest, it is not necessary for the purpose of this decision to consider further the ‘fit and proper’ discretion.

Decision


57 In accordance with section 63 (3)(a) of the Tribunal Act, the decision of the Commissioner of Police to revoke Mr May’s firearms licence is affirmed.