Nixon v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 76

CITATION:	Nixon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 76
DIVISION:	General Division
PARTIES:	APPLICANT Frederick Oral Nixon RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003027
HEARING DATES:	04/04/00
SUBMISSIONS CLOSED:	04/04/2000
DATE OF DECISION:	06/16/2000
BEFORE:
APPLICATION:	Firearms licence - issue of licence or permit - Firearms Act - firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Christianos v Commissioner of Police [1999] NSW ADT 66 Ward v Commissioner of Police [2000] NSWADT 28
REPRESENTATION:	APPLICANT T Morgan RESPONDENT J Tunks
ORDERS:	1. The reviewable decision is set aside; 2. The applicant be granted a permit to possess and use a 22 calibre hand gun on the property known as Eskett, situated at RMB 704, Holbrook, New South Wales, for the purpose of the humane destruction of sick , injured and bogged stock and wildlife (which he is otherwise permitted to destroy) on the said property for a period of five years from today.

1 This is an application for review by the Tribunal of a reviewable decision of the respondent to refuse to issue a pistol permit to the applicant for purposes connected with the applicant’s primary production business in New South Wales.

2 The application is made to the Tribunal pursuant to section 75(1)(a) of the Firearms Act 1996.

3 On about 20 July 1999 the applicant made an application for a “primary producer pistol permit” under Part 2 of the Firearms Act. The application was refused by the delegate of the Commissioner of Police in about early December 1999 and an application for internal review of the refusal was made. On 1 March 2000 another delegate of the respondent refused the application setting out a detailed statement of reasons.

4 The Tribunal heard the matter on 4 April 2000. The applicant was represented by a solicitor, Mr Morgan, and the respondent was represented by an in-house solicitor, Mr Tunks. Documents were tendered and exhibited without objection which I have read and the applicant gave oral evidence at the hearing and was cross-examined by Mr Tunks.

5 It is common ground that the application is to be decided by reference to sections 28(g) and 29(4) of the Firearms Act 1996 (“the Act”) and that there is no other issue between the parties which would otherwise impede the possible grant of a permit under Division 3, Part 2 of the Act, and in particular, sections 28 to 30 inclusive. In other words, generally speaking, the respondent is satisfied that the applicant is otherwise a fit and proper person and can be trusted to possess firearms and that he will be otherwise responsible in dealing with firearms if granted a permit. It is also common ground that there is no relevant regulation that would affect the grant of a permit to the applicant in the present case.

6 The applicant says that he wishes to have the permit in order that he may humanely destroy sick, injured and bogged stock on his property. The primary contention of the respondent is simply that the applicant does not need the permit.

7 As at the time of the hearing the applicant held the following licences under the Act in relation to firearms:

• Category A - ‘Target shooting’, ‘Recreational Hunting/ Vermin control; ‘Primary Production’
• Category B- ‘Target shooting’; ‘Recreational Hunting/ vermin control; ‘Primary production’
• Category C- ‘Primary Production’
• Category H- ‘Target shooting’; ‘security guard’.

8 The Act provides for the regulation, control and registration of firearms in NSW. The underlying principles of the Act and its objects are set out in section 3 of the Act.

9 Part 2 of the Act provides for licensing and permits for possession and/or use of firearms and provides for certain categories of licences. Section 7 of the Act provides for criminal offences for, inter alia, possession or use of a firearm unless authorised by a licence or a permit under the Act. There appears to be a difference in the Act between the concept of a “licence” and a “permit”. However, the significance of the difference is not readily apparent on the face of the legislation (see, Christianos -v- Commissioner of Police [1999] NSWADT 66 esp at [17] to [20]). In any event, the present application is only concerned with the issue of a permit under the Act and not a licence.

10 Section 28(g) of the Act provides:

“28 General power to issue permits

The Commissioner may issue permits for any one or more of the following purposes: …
(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate”

11 Section 29(4) of the Act provides:

“29 General restrictions on issuing permits

(4) The Commissioner may refuse to issue a permit if the Commissioner considers that issue of the permit would be contrary to the public interest.”

12 The evidence of the applicant establishes he is an experienced grazier running a property at Little Billabong near Holbrook in NSW. He has been a grazier for 20 years and the property is approximately 1400 acres in size. About two-thirds of the area is hilly terrain that has not been cleared. On the property, the applicant normally runs about 1500 sheep, 100 cattle and about a dozen horses. The property is divided into paddocks at the bottom end of the property which is clear. The remaining part of the property is fenced but is hilly and densely bushy. This “high country” also contains gullies of blackberries, briar bushes and bracken fern. He runs his sheep mostly in this high country in dense scrub.

13 The primary reason the applicant wishes to possess a pistol permit is to enable lawful use of a firearm for the humane destruction of any animal in distress or that is injured or caught on his property. This includes sick or bogged stock or wildlife. In particular, at lambing time, it is necessary to humanely destroy ewes every day on the property. Additionally, animals get trapped in gullies and in blackberries and briar bushes and the only thing that can be done is to destroy them humanely. Usually, injured or sick stock retreat to the most overgrown part of the property to seek cover or hide.

14 The applicant normally travels across his property on a motorcycle and has tried a number of methods of carrying a long arm firearm on his motorcycle. He has tried carrying the long arm across the back of the motorcycle, in a side scabbard and in a handlebar scabbard. He has found each method to be dangerous or unsafe in a number of respects in the particular circumstances of operating on his property.

15 I accept the evidence of the applicant. It was not successfully challenged in cross-examination in my opinion. The applicant presented to me as an honest witness and I have no reason not to accept his evidence.

16 No oral or affidavit evidence was adduced by the respondent. Some documents tendered by the respondent were primarily directed to establishing one aspect of an assertion once made by the applicant that, in part, he desired the pistol permit in order to deal with a feral pig problem which occurred from time to time on his property. However, the applicant’s oral evidence, as I have found above, was that he required the permit so as to enable humane destruction of distressed animals on his property. Consistent with the applicant’s written submissions, which were filed and served on the respondent before the hearing, the issue relating to feral pigs effectively fell away before the hearing in that it was no longer relied upon by the applicant as a reason for requesting a pistol permit.

17 As I have indicated, the principal reason for the opposition to the applicant’s application was that it was said that the applicant had not established the requisite need for a pistol permit in the circumstances. Some very limited documentary evidence was tendered by the respondent showing that in about June 1998, the applicant had been issued with a primary producer pistol permit No 405988977 and on or about 20 November 1998 the respondent issued a notice of revocation of the said permit. As far as I can ascertain, a primary reason for the revocation was that it was considered the applicant had “no real reason” to hold such a permit any longer. Significant attention was paid at about that time in the documents tendered to the feral pig problem mentioned earlier. An appeal was lodged by the applicant to the Local Court and that application was dismissed on 31 May 1999 by the magistrate.

18 No attempt was made to put before me in any satisfactory fashion any of the documents which were tendered before the magistrate at the hearing. No transcript was provided to me. No questions were asked of the witness in cross-examination about his evidence before the Local Court on that occasion. In the circumstances, I accord what evidence there is before me relating to the Local Court appeal little weight in making my decision in these proceedings.

19 In these circumstances, I am satisfied in accordance with section 28(g) of the Act that it is appropriate for the Commissioner to authorise the possession and use of a pistol by the applicant. I deal with the circumstances of permitted use below.

20 The real question raised by this application is whether the issue of the permit which the applicant seeks would be “contrary to the public interest” within the meaning of section 29(4) of the Act. No submissions of any substance were made by the respondent going to the question of the public interest (I note the brief discussion of the public interest in relation to section 24(2)(d) of the Act in Ward -v- Commissioner of Police [2000] NSWADT 28 at [32] and [33]). I am satisfied that the issue of a permit in the present case would not be contrary to the public interest having regard to the applicant’s experience with firearms, the history of his licensed possession and use of firearms in New South Wales and the fact that it has not been shown that the applicant is other than a fit and proper person to hold such a permit and that he will be other than responsible in dealing with firearms if granted a permit.

21 The applicant submitted that should I determine that he was entitled to a permit, the Tribunal should grant it for a period of 5 years. The applicant gave oral evidence that 5years would be preferable given that such a period would require him to undertake less paperwork in seeking annual renewals of such a permit. The respondent conceded at the hearing that the proper range for the duration of a permit, were such a permit to be granted, would be between 1 and 5 years.

22 I make the following determination:

1. The reviewable decision is set aside;

2. The applicant be granted a permit to possess and use a 22 calibre handgun on the property known as Eskett, situated at RMB 704, Holbrook, New South Wales, for the purpose of the humane destruction of sick, injured and bogged stock and wildlife (which he is otherwise permitted to destroy) on the said property for a period of 5 years from today.