Nelson v Commissioner of Police

[2012] NSWADT 84

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Nelson v Commissioner of Police [2012] NSWADT 84
Hearing dates:	9 January 2012
Decision date:	04 May 2012
Jurisdiction:	General Division
Before:	P H Molony, Judicial Member
Decision:	The decision revoking Mr Nelson's firearms licence is confirmed.
Catchwords:	Firearms licence - revocation - resident of NSW - about to become a resident of NSW
Legislation Cited:	Firearms Act 1996
Cases Cited:	Pang v Commissioner of Police [2009] NSWADT 11
Category:	Principal judgment
Parties:	William John Nelson (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	W Nelson (Applicant, in person) Bartier Perry (Respondent)
File Number(s):	113279

REASONS FOR DECISION

1. Mr Nelson was the holder of a category AB firearms licence under the Firearms Act 1996. On 28 March 2011 his firearms licence was revoked. Mr Nelson then sought an internal review of that decision. On 12 August 2011, the decision to revoke his firearms licence was confirmed on internal review.

1. Mr Nelson subsequently applied to the Tribunal to review that decision. That appeal came before me on 9 January 2012, when Mr Nelson participated by phone from his daughter's home in Queensland, with Mr Mattson representing the Commissioner of Police. No oral evidence was given, with the parties instead making submissions based on the material they had each filed.

1. In Mr Nelson's case the issues requiring determination are:

• Whether Mr Nelson is a resident of New South Wales? If not, whether Mr Nelson is about to become a resident of this State?
• If so, whether due to his health, Mr Nelson has the capacity to exercise continuous and responsible control over his firearms so as to satisfy the Commissioner, and the Tribunal, standing in his shoes, that Mr Nelson is a fit and proper person who can be trusted to have possession of firearms without danger to the public safety?
• Whether Mr Nelson has demonstrated a genuine reason for holding a category AB firearms licence?

1. The Tribunal's task on reviewing the decision is to consider the issues on the merits in the light of the evidence before the Tribunal at the time of hearing, and to make the correct and preferable decision.

1. There is no dispute that Mr Nelson suffers from a neurological condition called inclusion body myositis. This is a slowly progressive muscular disorder. There is also no dispute that Mr Nelson does not have a permanent place of residence in New South Wales and has been receiving treatment for his medical condition in Queensland. Mr Nelson has a post office box at Port Macquarie that he uses as his mail address.

Is Mr Nelson a resident of NSW?

1. Section 11(3)(d) of the firearms act 1996 provides -

A, licence must not be issued unless the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

1. Section 12(2) provides that the Commissioner revoke a licence:-

(a) for any reason for which the licensee would be required to be refused a licence of the same kind,

...

1. Mr Nelson asserts that he is and has always been a resident of NSW. When he made his most recent application for a firearms licence on 18 May 2009 he gave a residential address in Telegraph Point. He agrees that he no longer resides at that address, and says that he now has no fixed address in NSW.

1. Mr Nelson argued that there is no obligation on him as a firearms licence holder to have a fixed address in NSW, in order to be a resident or intended resident of the State. Mr Nelson submitted that he has a mailing address in NSW, and a NSW telephone number on hold. He had nominated a NSW address at which his firearms would be stored. He asserted that he spends time in NSW but moves around. He said his driver's licence is a NSW licence and his car is registered in NSW.

1. He asserted as proof of his NSW residence that his Alpaca Stud was registered in NSW. He also wrote with respect to his Alpaca Stud (letter of 4 Aril 2011) that:

I own an Alpaca Stud in NSW and a vet account.

I am the owner of Port Macquarie Alpaca Stud.

The Alpacas owned and resident in NSW.

My Alpaca herd is insured in NSW.

I am a member of the Australian Alpaca association of NSW.

1. Mr Nelson agreed that he had "spent time" in Queensland for medical treatment. He asserted that he was approaching his last treatment.

1. The Commissioner contends that an examination of the objective evidence available leads to the conclusion that Mr Nelson left the Telegraph Point address and moved interstate, to Queensland, on 4 April 2010, some twenty months before the hearing. A COPS Event E 40729531 created on 6 April 2010 by Constable Christensen records Mr Nelson telling Police that he had left this address at Telegraph Point and moved interstate on 4 April 2010.

1. In a letter written to the Firearms Registry following his licence revocation dated 4 April 2011- one year later - Mr Nelson said that he was staying in Queensland with his daughter for medical treatment. He referred to ongoing discussions with both NSW and Queensland Police concerning where his firearms should be stored and whether he should have a NSW or Queensland firearms licence. He noted that he had told Port Macquarie Police on 17 September 2010 that "...although I was remaining a resident of NSW I would for a short time be spending most of my time attending medical facilities in NSW." He wrote, "I am moving back to NSW at Easter and would like to take my rifles with me."

1. At the time of the hearing Mr Nelson was still living in Queensland, living with his daughter and receiving treatment. He said this would be completed shortly and he would return to NSW.

1. Documentary evidence produced by the Commissioner shows that:

• Mr Nelson has had mail redirected from the property in Telegraph Point to a post office box in Port Macquarie since 20 March 2000.
• As of 19 October 2011 Mr Nelson was registered on the electoral role at the Telegraph Point address, despite not having lived there for some time.
• At the time of the directions hearing on 1 November 2011.Mr Nelson attended by phone from Queensland. In response to a question, he said his mail was presently being redirected to Queensland. At that hearing he told the Deputy President:-

I am moving back to NSW, One of two reasons holding me up. One, I haven't got the clearance for my health yet. Two, I have got to take my gun case and rifles back ...

• A title search shows that Mr Nelson is not the registered owner of the property at Telegraph Point.
• Mr Nelson was made bankrupt on 14 October 2009 on a Creditor's Petition. Stephen Hundy of Worrells Solvency and Forensic Accountants was appointed as Trustee. He remains bankrupt.
• A Notice of Objection to Mr Nelson's discharge from bankruptcy prepared by the Trustee advised, among other things, that he had written to Mr Nelson on 23 March 2011 advising that he intended to sell Mr Nelson's motor car and requesting that arrangements be made to surrender it.

On 5 April 2011 I received a letter from the bankrupt in which he advised that the motor vehicle had been repossessed and disposed of by a financier and that he had cancelled the registration and insurance on the vehicle.

• The Trustee noted that Mr Nelson had not previously disclosed that the vehicle was encumbered and had failed to respond to a letter seeking details of that arrangement.
• The business "Port Macquarie Alpacas" that Mr Nelson has an interest has had its principal place of business registered at a Queensland address since 7 March 2011.
• The Notice of Objection to Mr Nelson's discharge from bankruptcy includes the following information relating to the Alpacas provided by the Trustee:-

On 22 December 2010 1 wrote to the bankrupt and requested details of the current location and estimated value of 42 alpacas registered in the name of the bankrupt with the Australian Alpaca Association, together with details of any other alpacas owned or alpacas sold in the last 2 years.

On 7 January 2011 I received a letter from the bankrupt advising, inter alia, that prior to bankruptcy he had agistment fees outstanding in relation to the herd of alpacas and that he agreed with the agisters that the alpaca herd would remain as security for the outstanding agistment fees. Further, he advised that the listing of alpacas was not up to date or correct as there had been a number of deaths and he was in the process of adjusting the list.

On 19 January 2011 I wrote to the bankrupt and requested details of the agisters where the alpaca herd was currently located.

On 23 March 2011 a further letter was sent to the bankrupt advising that I had not received details of the agisters where the alpaca herd was located and directed him to provide this information to me within 14 days.

On 5 April 2011 I received a letter from the bankrupt advising, inter alia, that a number of the alpacas were dead and the list of alpacas was outdated. The bankrupt advised that he had forfeited the alpacas in lieu of unpaid adjustment costs. The bankrupt advised that he knows the people that now own the alpacas and that if I pursued the issue of ownership of the alpacas they would take the matter to Court.

On 27 April 2011 I sent a letter to the bankrupt again directing that he provide me with details of the agisters to whom he transferred ownership of the alpacas, together with the date of transfer within 14 days.

To date the bankrupt has failed to provide sufficient written information in relation to the alpacas, including details of the agisters and an adequate explanation in relation to their disposal or transfer.

• In a letter to the Firearms Registry dated 28 October 2011 Mr Nelson said, "I have an interest in property at 43 Gordon Street, Port Macquarie." However a title search indicated that property is owned by a company in which Mr Nelson has no interest. When this was pointed out to him, he claimed he was owed money for work done.
• The bills, which Mr Nelson relied on to demonstrate his NSW residence, are all old and addressed to the Telegraph Point address.
• In Mr Nelson's statement of affairs, prepared for his bankruptcy in March 2010, Mr Nelson disclosed no income from any business or investment, said he held no shares or investments and declared that he was not in business or involved in a company.

1. In Pang v Commissioner of Police [2009] NSWADT 11 at [23] to [28] I wrote:

23 There is no definition of the word 'resident' in the Firearms Act 1996. That being the case the words 'resident of the State' are to be interpreted in accordance with their ordinary and current meaning, unless there is something in the context which indicates an intention to depart from that meaning: Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157.

24 The Macquarie Dictionary defines resident as:

noun 1. someone who resides in a place

25 'Reside' is defined thus:

1. to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill.

26 On an ordinary understanding the meaning of the word resident, it is my view that Mr Pang, living as he does in Hong Kong, is not a resident of NSW. The fact that he may have the immigration status of permanent resident of Australia and holds a subclass 155 visa does not make him a resident of NSW. He does not live here and has not done so for a considerable time.

27 That he owns a property in NSW in which he intends to reside in the future does not make him resident in the State. That property is presently let to tenants. His ownership of the property demonstrates no more than that he owns property in NSW. It does not demonstrate that he has his home here, or lives here. Indeed, all the evidence points to him having a home in Hong Kong and living there for some time. This conclusion, I note, is consistent with the decision in Burditt v Joslin [1981] 3 All ER 203, to which I referred the parties. There Donaldson LJ and Bingham J held the ownership of property, which did not carry with it a right of occupation because it was let to tenants, was not sufficient to show that an applicant for a firearms certificate, under section 26 of the Firearms Act 1968 (UK), resided within the area in which he had applied for a certificate.

28 I consider this interpretation to be consistent with and in accordance with object of the Firearms Act 1996.

1. I went onto conclude that, as Mr Pang had provided airline tickets confirming his stated intention of returning to live in NSW in less that three months time, I has no reason to doubt that the is about to become a resident.

1. In Mr Nelson's case, however, there is ample reason to doubt the matters he relies as establishing that he is a resident of NSW and that he intends to return to NSW shortly.

1. It is clear from an analysis of the documentary evidence that many of the assertions made by Mr Nelson to demonstrate his continuing connection with and residence in NSW are not true. He does not own any property in NSW. His "Alpaca Stud" is not in fact a stud. In truth this is a reference to a business name, registered in his name, the principle place of business of which is in Queensland. Similarly, his claim that he has Alpacas that are resident in and insured in NSW does not withstand the weight of analysis. Any Alpacas he may have owned are, according to what he told the Trustee, long gone. If, contrary to what he told the Trustee, he retains them somewhere they are properly the property of the Trustee. Likewise, while Mr Nelson submitted that this motor vehicle is registered in NSW, he told the Trustee that it was repossessed and that he cancelled the insurance and registration.

1. Moreover, many of the other assertions made by Mr Nelson to support his residence, are not matters that are persuasive when it comes to determining his residence. The fact that he is a member of a club or association in NSW demonstrates his membership, not his residence. Evidence of his present and regular attendance at club or association meetings in NSW may go towards demonstrating residence, but there is no such evidence. Likewise old accounts, sent to his at the Telegraph Point property do not demonstrate present residence.

1. The conflicts between Mr Nelson's assertions and the facts as disclosed by the documentary evidence leads me to conclude that his assertions are not be relied on. I do not accept that I can rely on his assertions and assurances.

1. In those circumstances it is necessary to reach conclusions about Mr Nelson residence in NSW from the other materials before the Tribunal.

1. They show that he told Police on 6 April 2010 that he had moved to interstate two days earlier. That move was to Queensland. The COPS Event recording that phone conversation noted no qualifications on Mr Nelson's move.

1. There is no evidence that Mr Nelson has returned to NSW since. While in submissions he asserted that he had, he produced no evidence to verify that he had.

1. Mr Nelson participated in both the directions hearing and the substantive hearing of this matter by phone from Queensland.

1. The only conclusion open to me is that Mr Nelson has been living in Queensland since April 2010 with his daughter. While I am willing to accept that his move was motivated by illness and the need to access medical treatment, the reality is he has no property in NSW or other demonstrated connection with NSW consistent with him maintaining residence here. I find that he is not now a resident of NSW.

1. Mr Nelson assured me that that he was about to finish his medical treatment and that, when he did so, he intended to return to NSW. This assurance is to be compared with the other similar statements from Mr Nelson. On 4 April 2011 in a letter to the Firearms Registry he advised, "I am moving back at Easter." Notes made by an internal reviewer with the Firearms Registry on 17 May 2012 of a telephone conversation with Mr Nelson, record that, "Customer is currently living in QLD for medical treatment but will return to NSW in the near future." In another letter to the Firearms Registry dated 28 October 2011 Mr Nelson wrote, ""I have no connection to Queensland except temporally visiting because of family and health reasons". He told the Tribunal he would be returning to NSW at the directions hearing on 1 November, but there were two things holding him up.

1. Mr Nelson has no apparent place to live if her returns to NSW. He indicated that he would live with a friend near Goulburn, who has offered to store his firearms. Once again he offered no evidence to support his contention that his friend was willing to house him, as opposed to his firearms.

1. Mr Nelson has been making statements regarding his intention to return to NSW since before Easter 2011. None of them have come to fruition. As with his assertions about his connections with NSW, I am unable to accept his assurances alone. I have no confidence that what he tells me will prove correct.

1. As a result I am not satisfied that he is about to become a resident of the state.

Conclusion

1. It follows that I agree with the Commissioner that Mr Nelson is not a resident of NSW and is not about to become a resident. As a consequence it is not necessary to consider the other issues agitated before the Tribunal.

1. I agree that the correct and preferable decision is to confirm the decision revoking Mr Nelson's firearms licence.

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Decision last updated: 04 May 2012