Murkins v Commissioner for Police, NSW Police Force

[2017] NSWCATAD 293

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Murkins v Commissioner for Police, NSW Police Force [2017] NSWCATAD 293
Hearing dates:	30 June 2017
Date of orders:	04 October 2017
Decision date:	04 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The Respondent’s decision is affirmed.
Catchwords:	ADMINISTRATIVE LAW - FIREARMS - revocation of licence - conduct - fit and proper - risk to public safety - public interest.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; [1990] HCA 33 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Lynch v Commissioner of Police [2006] NSW ADTAP 43 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Vella v Commissioner of Police [2003]NSWADT 91 Ward v Commissioner of Police [2000] NSW ADT 28
Category:	Principal judgment
Parties:	Thomas Alfred Murkins (Applicant) Commissioner for Police, NSW Police Force (Respondent)
Representation:	Solicitors: In Person (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/00108360
Publication restriction:	None

Reasons for decision

Background

1. Mr Thomas Alfred Murkins (“the applicant”) was issued with a Category AB firearms licence on 23 April 2012.

2. On 3 October 2015, the Applicant’s firearms were seized by the Respondent for a 28 day period following a domestic incident which resulted in police attending the applicant’s residence. On 9 October 2015, the Applicant’s firearms licence was suspended and an application for an Apprehended Violence Order was made against the Applicant, following an incident involving him at a local hotel. As a result of that incident, the Applicant became subject to an Interim Apprehended Violence Order and he was charged with the offence of “Stalk/intimidate intend fear physical etc harm (personal) – T2”, both of which were withdrawn on 24 November 2015.

3. On 8 December 2015 the NSW Firearms Registry requested that the applicant provide a mental health assessment for the purpose of determining his fitness to continue holding a firearms licence. A mental health report was received by the Respondent from a psychologist, and the suspension of the Applicant’s firearms licence was lifted on 23 March 2016.

4. On 16 June 2016 the Respondent received a report of domestic conflict and abusive behaviours between the Applicant and his partner, amounting to unwanted conduct by the Applicant. On 22 September 2016 the Respondent received a report that a family member believed the Applicant had threatened to harm or kill himself via text message, which resulted in a welfare check by the Respondent via telephone.

5. On 27 September 2016 the Respondent attempted to serve the Applicant with a Notice of Suspension for his firearms licence, and to seize his firearms. The Applicant was aggressive and agitated towards the police officers, stated “you’re not taking my fucking guns”, and then later left six of his nine registered firearms on the back stairs of the Menindee Police Station. The three remaining firearms were ultimately surrendered to Menindee Police by individuals who did not have a firearms licence. The Applicant continued to be aggressive and agitated when the local police attended his residence to ensure that there were no firearms or ammunition remaining there.

6. On 30 September 2016 the Respondent revoked the Applicant’s Category AB firearms licence No. 410666251, on the basis that it was not in the public interest for the Applicant to continue to hold the licence.

7. On 12 October 2016 the Applicant sought internal review of the Respondent’s decision, explaining that the text message he had sent to his family member was not a threat of self-harm or suicide. On 26 October 2016 the Applicant sent additional correspondence to the Respondent, addressing specifically the incidents of 9 October 2015 and 22 September 2016, clarifying issues from previous decades, and explaining his relationship breakdown and his plans for the future.

8. On 27 February 2017 the Respondent issued its reviewable decision, revoking the applicant’s firearms licence on the basis that the applicant was not a ‘fit and proper person’ to hold the licence, had contravened the Firearms Act and licence conditions, and that it was not in the public interest for him to hold the licence, considering his improper behaviour, contravention of his licence conditions, mental health concerns, and the opinion of the police. The Applicant sought review in this Tribunal on 21 March 2017 of the Respondent’s reviewable decision.

9. At the hearing on 30 June 2017, the Applicant appeared, gave evidence and made submissions via telephone. Sergeant Roberts and Senior Constable Griffins gave evidence via telephone for the Respondent.

Legislation

10. The underlying principles of the Act are, relevantly:

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

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

11. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including:

(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

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

12. Clause 19 of the Firearms Regulation 2006 prescribes that:

19 Revocation of licence-additional reasons

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

13. The Tribunal has jurisdiction to review the Respondent’s decision pursuant to section 75(1) (c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013.

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

Fit and Proper

15. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a “fit and proper person". Toohey and Gaudron JJ stated (at 380) that:

“The expression “fit and proper person", standing alone, carries no precise meaning. It 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 concept of “fit and proper “cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. “

16. In the same case, Mason CJ stated at [63] that:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

17. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."

18. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term “fit and proper ":

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

19. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]:

Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

20. The Applicant’s fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.

21. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety.

“22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.”

The public interest

22. Section 24(2) (d) of the Act prescribes that a licence may be revoked for a reason prescribed by the Regulation. Clause 19 of the Regulation allows the Commissioner of Police to revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Accordingly section 24 (2) (d) of the Act and Clause 19 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

23. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (“the ADT”) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows:

The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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.

24. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the ADT confirmed that these comments apply equally to the Act.

25. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:

There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

26. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.

27. In Ward v Commissioner of Police the ADT's Deputy President Hennessy considered the fitness and propriety of Mr Ward to hold a firearms licence. The Deputy President stated at paragraphs [27 – 28]:

"27. ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms.

28. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."

28. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.

29. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].

30. In considering risk to public safety, the ADT recognised that it must be satisfied that a person would not pose a risk to public safety if they had access to firearms. Those same principles apply to the current jurisdiction.

Consideration

31. The Respondent’s revocation of the Applicant’s firearms licence follows a series of reports to the local police and the applicant’s interactions with local police where the applicant was demonstrably agitated, aggressive and abusive.

32. In evidence the Applicant conceded that he had felt and acted frustrated and angry during his relationship with his ex-partner, for a period of about 18 months. He conceded that he had been aggressive to the police in person and via telephone, but drew a distinction between being verbally abusive and physically violent. He stated that he had never been physically violent, and had never threatened any members of the public, but admitted to using abusive and aggressive language to both the police, his ex-partner, and members of the public. He conceded that he had been angry and verbally abusive when the police confiscated his guns.

33. Sergeant Roberts was the police sergeant at Menindee, a small community of 250 to 300 people, for over six years. His role in the community and his familiarity with its residents, including the applicant, adds significant weight to his evidence. Regarding the Applicant, he stated that it was “not really appropriate for him to have a licence given his behaviour and threats of self harm”. The Applicant’s relationship with his former partner had come to Sergeant Roberts’ attention on various occasions, and Sergeant Roberts’ opinion was that the Applicant used threats to maintain or gain control in that relationship.

34. Constable Griffin had been posted to Menindee Police for a period of three years. He was present at the Menindee Police Station on 29 September 2016 when the Applicant’s firearms licence was suspended. He said:

I called Mr Murkins, who was in Broken Hill. He was agitated and didn’t listen to what I had to say.

Then later I heard a car drive into the back of the police station. Mr Murkins was aggressive, yelling, angry, irate. He was holding firearms in a blanket. He threw them onto the back step of the police station.

Six of the nine guns were surrendered then. He gave no explanation regarding the other three firearms, and threatened to call his lawyers.

I attended his property later that day. He said his “family members would pay for having his firearms seized”.

It’s a small community. I don’t think it’s appropriate for him to hold a licence. I was contacted by people close to him at Menindee, pleading for the Police to take his guns from him. I don’t believe he is a responsible firearms owner. He is aggressive, irate. He doesn’t listen to reason.

35. The Applicant didn’t object to or argue with either Sergeant Roberts or Constable Griffin’s evidence, despite being given the opportunity to do so. He admitted to the conduct and statements ascribed to him by them and in the various police reports, seeking instead to explain his reasoning for acting or speaking in that manner. I therefore accept their evidence.

36. The applicant claimed that he wasn’t aggressive or threatening, despite admitting to making statements and conduct to the contrary. His perception of his conduct did not match reality or the perception others had of his conduct or intentions. I accept, on the basis of his evidence and the letter provided by his sister dated 30 September 2016, that the text message sent by the applicant to his sister on 22 September 2016 was not intended by him to threaten self harm. However, it was reasonably interpreted that way by her and the police. It is not the text message that caused the revocation of the Applicant’s firearms licence, but an accumulation of his conduct in interacting with the police on that occasion and on other occasions. Instead of responding to the Police’s concerns and inquiries following the text message on 22 September 2016 in a balanced and reasonable manner, the Applicant was aggressive, belligerent, yelled “You’re not taking my fucking guns”, then dumped six firearms without explanation at the police station and handed the other three firearms to individuals who were not registered to possess the firearms, without checking whether they were licenced or had appropriate storage facilities. This conduct amplified previous incidents in which he had been aggressive or threatening in the context of police inquiries.

35. The Applicant submitted that the guns were largely sentimental, although now that he wasn’t working he wished to join a clay shooting club. He gave evidence of using firearms to lawfully shoot kangaroos, rabbits, and an air rifle to “scare off chooks” on his property. He had appropriate storage facilities which had passed previous inspection. I accept that evidence, however “the Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety”: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at 69. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". The evidence of the local police, which I accept, is that, on occasion, the Applicant doesn’t listen to reason, becomes agitated and aggressive, verbally abusive, and threatening. He was the subject of applications for apprehended violence orders. He refused initially to surrender his firearms to the police when requested, and then handed three of his firearms to individuals without regard for the relevant firearms regulations. The Tribunal's consideration is guided by the fact that "the most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety”. In the circumstances, I cannot be satisfied that there is virtually no risk to public safety in the Applicant having access to firearms. I find that it is not in the public interest for the Applicant to have a Category AB firearms licence.

36. I therefore affirm the Respondent’s decision, for the reasons given.

Orders

1. The Respondent’s decision is affirmed.

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

Registrar

Decision last updated: 04 October 2017