Morris v The Commissioner of Police

[2002] NSWADT 223

CITATION:	Morris -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 223
DIVISION:	General Division
PARTIES:	APPLICANT Barry Michael Morris RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023166
HEARING DATES:	28/10/2002
SUBMISSIONS CLOSED:	10/28/2002
DATE OF DECISION:	11/06/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	O'Sullivan v. 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 J Taylor, solicitor RESPONDENT C Capper, advocate
ORDERS:	1. The Commissioner decision to revoke the applicant's licence is affirmed.

1 On 29 May 2002 the Commissioner of Police (the Commissioner) revoked Mr Morris’ Category AC firearms licence which enabled him to engage in recreational hunting and vermin control. On 1 August 2002 Mr Morris applied to the Tribunal for a review of that decision.

2 The revocation decision followed Mr Morris’ appearance in the Local Court on 3 October 2001 when he was convicted or found guilty of several offences including firearms offences. The background to these offences is that there was an altercation between Mr Morris and his wife after which police attended the property. Police visited the property again a few days later and charged Mr Morris with the storage and unregistered firearms offences.

3 The Tribunal has jurisdiction to hear this matter under s 75 of the Firearms Act 1996 (the Firearms Act) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Grounds for revocation

4 The Commissioner relied on three grounds to revoke Mr Morris’ licence. The first ground was that the Commissioner would be required to refuse him a licence if he was applying for one. The second ground was that Mr Morris is no longer a fit and proper person to hold a licence and the third ground is that it is not in the public interest for Mr Morris to continue to hold a licence. The legislative provisions prescribing these grounds are set out below.

Legislative provisions

5 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence.

1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence , or
(d) for any other reason prescribed by the regulations. (Emphasis added.)

6 Two of the reasons the Commissioner is required to refuse a licence are set out in s 11(5)(b) and s 11(5)(d):

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
(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere)

7 For the purposes of s 11(5)(b), the s 5 of the Firearms (General) Regulation 1997 (the Regulation) prescribes the following offences:

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
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

8 Finally, under s 24(2)(d) a licence may be revoked for any other reason prescribed by the regulations. Clause 17 of the Regulation states that:

In accordance with section 24(2)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it. (Emphasis added.)

9 Part 4 of the Firearms Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that a person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

10 Under s 40(1) of the Firearms Act:

The holder of a category A licence must comply with the following requirements in respect of any firearm to which the licence applies:
(a) when any such firearm is not actually being used or carried , it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

11 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Morris's firearms licences on any or all of the above grounds.

Evidence

12 On 3 October 2001, the Local Court made the following determinations:

• Re five counts of not keep firearm safely, Mr Morris was dealt with under s 10 of the Crimes (Sentencing Procedure) Act and given a 12 month bond;
• Re two counts of possess unregistered firearm, Mr Morris was convicted and fined $200 in relation to each matter;
• Re assault occasioning actual bodily harm, the charge was dismissed; and
• Re resist officer in execution of duty, the charge was dismissed on appeal.

13 In relation to the storage offences, two firearms (a .22 calibre rifle and .22 calibre air-rifle) were locked in the boot of Mr Morris’ car which was kept in a locked garage. The car and the garage both had an alarm and Mr Morris had two Doberman dogs. The bolts, magazines and ammunition relating to these firearms were in his locked bedroom. No-one except Mr Morris had the keys to the car, the garage or his bedroom. The firearms had been in the car for about three weeks and the car had not been driven in that time. Mr Morris considered that these arrangements were sufficient to ensure the safety of the firearms.

14 Mr Morris also had three firearms and some ammunition stored in his office, behind the kitchen area. The firearms were two .22 rifles and a 303 rifle. There was also a magazine containing ammunition and a rifle bolt. None of these firearms was complete and each had the firing mechanism missing. One firearm belonged to Mr Morris and two belonged to a person who lived in Queensland. That person had left his car with Mr Morris’ wife in payment for a debt. Mr Morris had contacted the man about three weeks prior to the domestic incident and arrangements had been made for the man to collect the firearms from his office. The man told Mr Morris that the firearms were registered in Queensland.

15 Mr Morris was found guilty of having failed to store these firearms safely. The Local Court placed Mr Morris on a bond to be of good behaviour for 12 months. That bond expired on 3 October 2002. Mr Capper relies on these offences as the basis for the Commissioner’s decision to revoke the licence under s 24(2)(a) and s 11(5)(d).

16 The two counts of possessing unregistered firearm related to two of the three firearms in Mr Morris’ office which belonged to a man who lived in Queensland. As Mr Morris was convicted of these offences, Mr Capper relied on s 24(2)(a) and s 11(5)(b) as justifying the Commissioner’s decision to revoke the licence.

17 The charges of resist arrest and assault occasioning actual bodily harm were dismissed. In the absence of any evidence from police officers or other witnesses to these events, I am not in a position to make findings about the circumstances of these alleged incidents.

Reasons and decision

18 The principles of the Firearms Act are set out in s 3:

1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.

19 Section 24(2)(a) gives the Commissioner a discretion to revoke a licence “for any reason for which the licensee would be required to be refused a licence of the same kind.” The Commissioner would have been required to refuse Mr Morris a licence if he had applied for one on 29 May 2002 (the date of revocation) because Mr Morris was subject to a good behaviour bond at the time. That bond has since expired, so the Commissioner would not be required to refuse Mr Morris’ application for a licence on that basis today. Consequently, to the extent that the Commissioner’s decision relies on that ground, it is no longer correct.

20 In addition, the Commissioner would have been required to refuse Mr Morris a licence if he had applied for one on 29 May 2002 (the date of revocation) because Mr Morris had been convicted of two counts of possessing an unregistered firearm. Those convictions occurred within the previous 10 years and are prescribed by Clause 5 of the Regulation.

21 Since Mr Morris has been convicted of an offence relating to the possession or use of a firearm (possess unregistered firearm) any application by him for a new firearms licence would have to be refused for the period of 10 years from the conviction. However, under s 24(1)(b) the Commissioner still has a discretion to revoke or not to revoke Mr Morris’ licence in circumstances where he will be refused a licence once his current licence expires.

22 The Firearms Act does not list the factors which a decision maker must take into account when deciding whether to revoke a person's licence in circumstances where the Commissioner would be required to refuse a licence of the same kind. The discretion should be exercised in a way which takes into account all relevant considerations including the principles and objects of the Firearms Act .

23 For the Tribunal to set aside a revocation decision based on possession of unregistered firearms an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case. Relevant considerations include:

• the reason for possession of the unregistered firearm;
• the length of time the firearm was unregistered;
• the person's previous conduct in relation to registration of firearms and any related matter;
• the person's understanding of the importance of ensuring that firearms are registered; and
• the reason the person wants a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.

24 In this case, Mr Morris was in possession of the unregistered firearms because another person had left them in a vehicle on his property. It is not clear how long the vehicle had been on the property before Mr Morris opened the boot and found the firearms. According to Mr Morris even if the firing mechanisms were fitted, the parts he found were in such poor condition that they would probably never fire again.

25 In this case, Mr Morris should have made inquiries with the police as to what to do with the firearms when he found them in the boot of the man’s car. Instead he contacted the man and made arrangements for him to pick them up. In the meantime, the firearms were not securely stored.

26 Mr Morris uses a firearm to cull rabbits on his property. He said that the horses he has on the property are in danger of falling into rabbit holes and injuring themselves. He prefers to shoot rabbits rather than poisoning them.

27 Mr Morris came into possession of the unregistered firearms through no fault of his own and was under the impression that they were registered in Queensland. He made arrangements for the man who owned them to collect them. While he should have taken them to the police station and sought advice as to what he should do with them, the fact that he had possession of unregistered firearms, as distinct from the fact that he failed to store them correctly, is not sufficient justification, in my view, to revoke his licence.

Public interest

28 The phrase 'in the public interest' was considered by the High Court in O'Sullivan v. Farrer (1989) 168 CLR 210. In a joint judgment, Mason CJ, Brennan J, Dawson J, and Gaudron, said that:

The expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters . . ."

29 The concept of 'the public interest' was considered by this Tribunal in two previous decisions, namely Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25) and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Toleafoa the Appeal Panel stated that the public interest is:

. . . an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

30 In Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (23 March 2000), I concluded that these comments were equally applicable in the context of the Firearms Act . The 'public interest' in relation to the holding of a firearms licence relates to the objects and principles set out in Section 3 of the Firearms Act.

31 The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. As is made clear from Part 4 of the Firearms Act, Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but imposed detailed requirements on all licensees.

32 In general, my view is that it is not in the public interest that those people who have failed to comply with the statutory obligations to store firearms safely should continue to be afforded the privilege of holding a firearms licence. Of course, there will be circumstances where the continuation of that privilege is justified.

33 In this case Mr Morris failed to store firearms safely in two locations, his car and his office. He expressed the view that the storage of the firearms in the locked boot of his car (which was in a locked garage) was sufficient to ensure their safety. It is not in the public interest for a person in Mr Morris’ position to fail to comply with legislative requirements because he believes that the firearms are stored safely, or because he is waiting for a suitable safe to be built.

34 The firearms stored in his office were behind a door in a kitchen area. Although the office was locked when Mr Morris was not there, the public needs to be confident that firearms are being stored in accordance with the legislative requirements by those who are afforded the privilege of holding them. In my view the public would not be confident that Mr Morris takes his obligations seriously enough to continue to be afforded that privilege. In those circumstances it is not in the public interest for Mr Morris to continue to hold a licence.

35 Having come to this view, there is no need to consider the Commissioner’s third ground for revocation, namely that Mr Morris is no longer a fit and proper person to hold a licence.

Orders

36 The Commissioner’s decision to revoke Mr Morris’ licence is affirmed.