Oliver v Commissioner of Police, NSW Police

[2007] NSWADT 153

CITATION:	Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153
DIVISION:	General Division
PARTIES:	APPLICANT Bruce Neville Oliver RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063354
HEARING DATES:	23 April 2007
SUBMISSIONS CLOSED:	14 May 2007
DATE OF DECISION:	25 July 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Commercial Agents and Private Inquiry Agents Act 2004 Criminal Records Act 1991 Criminal Records Regulation 2004 Firearms Act 1996 Security Industry Act 1997
CASES CITED:	Commissioner of Police v Toleafoa [1999]NSWADTAP 9 Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358 Commissioner of Police, NSW Police v Mercer (GD) [2005] NSWADT AP 55 Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218 Pearce v Commissioner of Police, NSW Police Service [2000] NSWADT 99 Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221 Wortshear v Commissioner of Police, NSW Police [2005] NSWADT 75
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, agent
ORDERS:	The decision of the respondent is set aside and in substitution thereof a decision that the applicant be issued a category AB firearms licence.

1 Mr Oliver, the applicant, has applied for a review under s.75 of the Firearms Act 1996 (The Firearms Act) of a decision by the respondent Commissioner to refuse his application for a category AB firearms licence. The grounds relied on by the respondent in refusing to issue the licence were those set out in s.11(7) of the Firearms Act which provide that the respondent “may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to public interest”.

2 The conduct or facts relied on by the respondent was conduct engaged in by Mr Oliver in June 2001 while he was the holder of a category AB and a category H firearms licence together with conduct that occurred on 19 November 2002 when police executed a search warrant on his premises in Warialda. The conduct that occurred in June 2001 related to an alleged ‘offer of sale’ of an unregistered firearm to an under cover police officer. On 19 November 2002, in the course of executing a search warrant, police found located a loaded shotgun in the study of the applicant’s premises and an unregistered Colt.45 calibre semi-automatic pistol in the bedside drawer in the applicant’s bedroom. The applicant was subsequently charged in respect to the offer of sale of the unregistered firearm, the failure to safely store the two firearms located by police and possession of an unregistered pistol. However, on 26 March 2003, on a plea of guilty, the applicant was only found guilty, but not convicted, of the offence of offer to sell an unregistered firearm. The remaining charges were withdrawn. In addition to being found guilty of the ‘offer for sale’ offence the court imposed a 2 year good behaviour bond.

3 On 19 November 2002, the applicant’s firearms licences were suspended and then subsequently revoked on 21 May 2003 after he had been found guilty (but not convicted) of the ‘offer for sale’ offence.

4 On 29 November 2005, following the expiry of his 2 year good behaviour bond, the applicant lodged a fresh application for a category AB firearms licence. The respondent refused to issue the licence sought on 31 March 2006 and this decision was affirmed on 30 August 2006 following an internal review request by the applicant.

Issues

5 There are primarily two issues for determination in this application. The first issue is whether the tribunal can have regard to conduct relating to the courts finding of guilt in respect to the abovementioned ‘offer for sale’ offence in light of the provisions of the Criminal Records Act 1991 (Criminal Records Act). If the answer to this is yes then the remaining issue is whether the respondent’s decision to refuse to issue the applicant with a category AB licence on the grounds that it would be contrary to the public interest to do so was the correct and preferred decision: see s.63, Administrative Decisions Tribunal Act 1997.

Relevant legislation

Firearms Act

6 The underlying principles of the Firearms Act are set out in s.3 of that Act. These include a confirmation that firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage of firearms.

7 Part 2 of the Firearms Act deals with the issue of licences and permits to possess and use firearms. Part 3 deals with the registration of firearms. Part 4 deals with the safekeeping of firearms. And Part 5 deals with firearms dealers’ licences. The remaining parts of the Firearms Act deal with miscellaneous offences, firearms prohibition orders, applications to the Tribunal and miscellaneous provisions.

8 The licensing provisions are contained in Division 2 of the Firearms Act and for the purposes of this application the relevant section is s.11 which relevantly provides as follows:

11 General restrictions on issue of licences

1. The Commissioner may issue a licence in respect of an application or refuse any such application.

2. A licence must not be issued until after the end of a period of 28 days following the day on which the application was made.

3. A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

(b) in the case of a person who has never held a licence - …

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) 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 the State.

3A. Despite sub-section (3)(b) the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.

4. …

5. A licence must not be issued to a person who:

(a) is under the age of 18, or

(b) has, within a period of 10 years before the application for the licence is made, been convicted in NSW or elsewhere of an offence described by the regulations, whether or not the offence is an offence under NSW law, or

(c) …

(d) …

(e) …

7. …

8. Despite any other provision in this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to public interest.

9. …

9 S.7 of the Firearms Act creates an offence of possessing or using a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit. S.7A contains a general offence of possessing or using a firearm unless authorised to do so by a license or permit. S.36 creates an offence of selling, purchasing, possessing or using a firearm that is not registered. S.40 and 41 of the Firearms Act prescribe the manner in which a registered firearm is to be stored when it is not actually being used or carried. S.40 relates to category A and B firearms and s.41 relates to category C, D and H firearms. It is unnecessary for the purposes of this application to repeat those provisions as it is not disputed that the applicant had storage facilities that met the prescribed storage requirements for the firearms he had in his possession. What is in issue is whether his conduct in June 2001 and November 2002 was such that it is no longer in the public interest for him to be issued with the licence he has applied for.

Criminal Records Act 1991

10 The objects of the Criminal Records Act are contained in s.3 which provides as follows:

1. the primary object of this Act is to implement a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history.

2. the Act also provides for the effect of the quashing of a conviction and the pardon of an offence.

11 S.5 of the Criminal Records Act provides that a finding of guilt is to be treated as a conviction for the purposes of the Criminal Records Act. There is no dispute that the finding of guilt in the case of the applicant was a conviction that ‘was capable of becoming spent’ pursuant to s.8(4) of the Criminal Records Act.

12 The consequences of a conviction becoming spent is set out in s.12 of the Criminal Records Act which provides as follows:

12 What are the consequences of a conviction becoming spent?

If a conviction of a person is spent:

(a) the person is not required to disclose to any other person for any purpose, information concerning the spent conviction, and

(b) a question concerning the person’s criminal history is taken to refer only to any conviction of the person which are not spent, and

(c) in the application to the person of a provision of an Act or statutory instrument:

(i) a reference in the provision to a conviction is taken to be a reference only to any conviction of the person which are not spent, and

(ii) a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent conviction.

13 S.15 contains exceptions to the operation of s.12 in relation to applications for certain types of employment. These are not relevant to this application.

14 S.25(2) and (3) of the Criminal Records Act provides as follows:

25(2) the regulations may provide that this Act or a specified provision of this Act does not affect another specified Act or a specified provision of another Act,

(3) the regulations may provide that a provision of this Act does not apply in relation to:

(a) a specified conviction, finding or order, or a charge relating to the conviction, finding or order, or

(b) a specified person or class of persons, or

(c) specified circumstances,

or any combination of them.’

15 Regulations have been made pursuant to the abovementioned provision which excludes the operation of s.12 of the Criminal Records Act to applicants for position with specified government agencies: see Criminal Records Regulation 2004. However, there is no exception in regard to applicants for a licence under the Firearms Act or the Security Industry Act 1997.

Evidence

16 The respondent tendered into evidence a copy of the brief of evidence that had been filed and served previously. That brief contained the applicant’s firearms licence history, his criminal history, the documents relating to the applicant’s suspension and then cancellation of his previous category AB and H firearms licences, a police fact sheet in respect to the charges laid against the applicant in respect to his conduct in June 2001 and the police search on 19 November 2002, and the documents relevant to the applicant’s application for a category AB firearms licence which is the subject of these proceedings. In addition to this material, at the hearing the respondent called Detective Heath Giles who was the officer who was one of the arresting officers of the applicant and who had prepared the fact sheet which was contained in the respondent’s brief of evidence.

17 Subsequent to the hearing, at the request of the Tribunal, the respondent filed and served a copy of the charge sheet in respect of which the applicant was found guilty and the agreed facts that were tendered in Court when the applicant pleaded guilty to that charge. He also filed and served a copy of a statement made by the undercover operative police officer to whom it was alleged the applicant had offered to sell a firearm and a copy of the record of interview between Detective Heath Giles and the applicant on 13 December 2002.

18 At the hearing the applicant tendered into evidence a response that he had prepared in answer to the material that was contained in the police brief, a copy of a letter dated 1 September 2003 the applicant wrote to the NSW Ombudsman concerning the actions taken by officers of the respondent in prosecuting him and then cancelling his firearms licences, correspondence between the applicant’s then solicitors Borthwick & Butler to the Office of the NSW Director of Public Prosecutions and the Officer in Charge of Moree Police Station, a bundle of miscellaneous correspondence between the respondent and the applicant and a chronology of events prepared by the applicant. In addition to this material, the applicant gave oral evidence. The applicant also provided some further written submissions on 9 May 2007.

19 There is essentially no dispute as to the sequence of events which are as follows:

(a) Sometime in early June 2001 the applicant met ‘Danny’ an undercover police officer at a firearms fair. “Danny’ was part of a wider police operation investigating alleged trafficking of illicit firearms in Queensland and New South Wales.

(b) The applicant stated that ‘Danny’ was also displaying firearms for sale. He explained that he thought from the beginning that ‘Danny’ was an undercover police officer as he was displaying very old firearms and equipment. The applicant stated in his evidence that at the time he was always very friendly towards others and he often engaged in conversation in a joking manner. It was in this manner that the applicant became engaged in conversation with ‘Danny’. The applicant stated that it was ‘Danny’ who inquired as to whether the applicant had access to an unregistered firearm that he could purchase. There would appear to have been some further conversations between the applicant and ‘Danny’ up until 12 June 2001. It was the applicant’s evidence that at all times he was joking, but then realised that ‘Danny’ had taken him seriously when he began to pressure him to show him the firearm he had that he could supply. It was the applicant’s evidence that it was ‘Danny’ who contacted him and suggested that they meet on 13 June 2001 so that ‘Danny’ could inspect the firearm that the applicant was speaking about. The applicant did not dispute that ‘Danny’ called him during the evening of 12 June 2001 and they arranged to meet between 3 and 4 pm the following day. Nor did he dispute that on the morning of 13 June 2001 he called Danny to make it clear that he did not have a firearm to sell and they agreed that they would meet in any event to have a coffee. They met and had a coffee and their conversation was recorded by means of a legally obtained listening device warrant. A copy of the transcript has not been provided to the applicant or the tribunal.

(c) As part of the abovementioned wider police investigation, on 19 November 2002, several police officers attended the then home of the applicant and executed a warrant. The applicant was present at the time. Detective Giles in his evidence stated that on arrival at the applicant’s premises he asked the applicant whether there was anything on the premises that he should not have. In response the applicant immediately led police to the bedside table where the pistol was located. He said there was no ammunition with the firearm and that the applicant had explained that it was his father’s and that he had had it in his possession since his father’s passing away which the applicant later explained was in 1997-1998. Detective Giles also explained that another firearm, a shotgun was found behind the door in the study. He stated that this firearm was loaded and the applicant had explained that he had placed the firearm there early that morning as he had seen a snake and he used it to shoot them. Detective Giles also acknowledged that police had not initially found the rifle, it was however shown to them by the applicant. The applicant explained in his oral evidence that on this particular day it was very hot and he had taken the shotgun from its storage cabinet as his wife had seen a large brown snake under the clothes line. He explained that he always shot snakes because they have a disabled daughter and they were concerned that she may inadvertently touch it. He said he did not return it to its cabinet because he was concerned that there would be more snakes given the heat of the day. The applicant also stated that his wife was and continues to be the holder of a firearms licence.

(d) The applicant was arrested and charged on that day. However, it was not until 13 December 2002 that he was in fact interviewed in regard to the offences for which he had been charged. When questioned about the firearms that were found at his premises, the applicant gave a consistent explanation as to why they were where they had been located at the time of the search. During this interview the applicant provided the interviewing officers with a copy of a receipt in respect of the registration of the pistol. It is the understanding of the tribunal that it was subsequently conceded by the respondent that at the time of the execution of the warrant, the pistol was in fact registered.

20 As mentioned above there are two issues in this application and in this regard it is convenient to first deal with the issue concerning the offence for which the applicant was found guilty.

Criminal Records Act

21 In Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358 the President recently considered the operation of the Criminal Records Act in so far as it affected ‘convictions’ for the purposes of s.13(1) of the Commercial Agents and Private Enquiry Agents Act 2004 (CAPEA Act). As was pointed out by the President at [5] to [7] the relevant provisions of the CAPEA Act provided for a mandatory refusal of an application for an operator licence if the applicant was a ‘disqualified individual’. That term was defined in that Act to encompass a person who had been ‘convicted or found guilty of a major offence’: see s.4 of the CAPEA Act. A ‘major offence’ was defined to mean specified offences involving violence, fraud, dishonesty or theft that was punishable by imprisonment, an offence involving the unlawful possession or use of a firearm or other weapon etc: see s.4 of the CAPEA Act. The fact of a conviction or finding of guilt for such an offence was sufficient to render the person a ‘disqualified person’ for the purposes of that Act. In such cases there is no need to inquire any further. However, as pointed out by the President, where such a conviction or finding of guilt is spent under the provisions of the Criminal Records Act, by reason of s.12 of that Act, the fact of that conviction or finding of guilt can no longer be relied on as disqualifying the person for the purposes of the CAPEA Act.

22 A similar finding was made by Deputy President, Magistrate Hennessy, in Strangers v Commissioner of Police, NSW Police Service [2004] NSWADT 221. In that case the issue was whether regard could be had to a spent conviction for the purpose of the licensing provisions in s.16(1) of the Security Industry Act 1997. That section provides for a mandatory refusal of a security licence where the applicant has been convicted or found guilty of offences, as prescribed under that Act, within 10 or 5 years of the date on which the application was made. Accordingly, the fact of a conviction or finding of guilt for a prescribed offence within the specified period will require the respondent to refuse such an application. The respondent in such cases has no discretion and the circumstances surrounding the conviction are not otherwise relevant. The issue in Strangers was whether by reason of s.12 of the Criminal Records Act, a conviction or finding of guilt that was spent under s.8 of that Act could be regarded as a conviction for the purpose of s.16 of the Security Industry Act. Deputy President Magistrate Hennessy held it could not: see at [8]. This reasoning was followed by the President in Mahabir (supra).

23 An earlier decision of Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99, the tribunal had come to a contrary conclusion. Again the provision in question was s.16(1) of the Security Industry Act 1997. However, the President in Mahabir and the Deputy President in Strangers disagreed with the reasoning in Pearce.

24 In my opinion the reasoning in Mahabir and Strangers is correct and it is equally applicable to s.11(5)(b) of the Firearms Act, which provides for the mandatory refusal of a firearms licence where the applicant has been convicted of an offence prescribed under that Act within 10 years of the application for the licence having been made. Again, where this section applies the respondent has no discretion and he must refuse the application for a licence on being satisfied of the fact of conviction and that the date of conviction was within a 10 year period from the application having been made. However, where a conviction is spent, s.12 of the Criminal Records Act operates so as to exclude that conviction for consideration as it is no longer a part of the applicant’s criminal record.

25 In this application there is no dispute that the finding of guilt in regard to the ‘offer for sale’ offence is spent under the provisions of the Criminal Records Act. The question is whether the conduct that gave rise to that finding is a matter that the respondent and hence the tribunal can nevertheless have regard to when considering whether the issue of a category AB firearms licence would be contrary to public interest.

26 The answer to this question lies in the proper construction of s.12 of the Criminal Records Act, in particular, paragraph (a) which provides that where a conviction is spent ‘the person is not required to disclose to any other person for any purpose, information concerning the spent conviction’ and its application to s.11(7) of the Firearms Act.

27 On a literal reading of s.12(a) of the Criminal Records Act the words, ‘information concerning the spent conviction’ indicate that the fact of a conviction or finding of guilt by a court and the conduct the subject of that conviction or finding comes within the terms of that paragraph. In any event, in my opinion, in its ordinary use the term conviction when relating to a specific event will inevitably include the conduct the subject thereof. On this basis, there is a strong argument that the proper construction of s.12 of the Criminal Records Act is as contended for by the applicant in that where a conviction is spent the person the subject of that conviction is not required to disclose the fact of conviction or the conduct the subject of that conviction unless the circumstances are such that the operation of the Act or one or more of its provisions (i.e. s.12) is expressly excluded (i.e. by reason of ss.15 and 16 of the Criminal Records Act or by reason of regulations made pursuant to s.25 of that Act).

28 S.12(a) must also be read in the context of the remaining provisions of that section and the objects of the Act. In this regard it is noted that the objects of the Criminal Records Act are set out in s.3 and include the implementation ‘of a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour.’ The section goes on to state that on completion of the period of crime free behaviour, ‘the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history’.

29 In regard to the remaining paragraphs of s.12 of the Criminal Records Act, these provide that a spent conviction does not form part of a person’s criminal history (see s.12(b)) and where a provision of another Act or statutory instrument makes reference to a conviction (see s.12(c)(i)), or the fitness and propriety of a person (see s.12(c)(ii)), that provision is to be construed as only referring to those convictions which are not spent. S.11(5)(b) of the Firearms Act is an example of a provision referring to a person’s conviction that comes within s.12(c)(i) of the Criminal Records Act and s.11(3)(a) of the Firearms Act is an example of a provision referring to a person’s fitness and propriety that comes within s.12(c)(ii) of the Criminal Records Act. There is no dispute that spent convictions cannot be considered under these particular provisions. Furthermore, there does not appear to be any dispute that the conduct the subject of a spent conviction cannot be taken into account for the purpose of assessing a person’s fitness and propriety. To hold otherwise would defeat the purpose of s.12(c)(ii) of the Criminal Records Act.

30 In this application the relevant provision in the Firearms Act is s.11(7), which does not refer to an applicant’s conviction or fitness and propriety. It relates to the public interest and as explained below is a broad concept. Furthermore it is a concept that is to be considered in the context of the objects of the Firearms Act, which is public safety.

31 While s.12(b) and (c) of the Criminal Records Act does not have any direct application to s.11(7) of the Firearms Act, it is difficult to see why s.12, including paragraph (a) should be read down to have no application, particularly when Parliament has expressly provided for a mechanism whereby particular provisions of other legislation can be excluded from the operation of provisions in the Criminal Records Act, including s.12. That mechanism has been used to exclude the operation of s.12 in respect to applicants for admission to legal practice under the Legal Profession Act 1987 (see cl.11 of the Criminal Records Regulation 2004). However, no similar regulation has been enacted in respect to the Firearms Act. This may of course be a legislative oversight.

32 It is also noted that the construction of s.12, as contended by the applicant, gives rise to an anomaly in that the tribunal could not have regard to the conduct of the applicant the subject of the ‘offer to sell’ offence yet it could have regard to the conduct that was the subject of the remaining charges that were dismissed.

33 In my opinion, for the purposes of this application it is unnecessary to form a view on the proper construction of s.12(a) of the Criminal Records Act and its application to s.11(7) of the Firearms Act as for the reasons set out below, even if the conduct the subject of the applicant’s spent conviction is taken into account, I have found that the decision of the respondent is not the correct and preferred decision.

Public Interest

34 It is well established that ‘public interest’ is an ‘inherently broad concept’ giving the respondent ‘the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual’: see Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. It is also well established that this discretion is to be exercised having regard to the objects of the relevant legislation. In this application it is the provisions set out in s.3 of the Firearms Act, which emphasise public safety. In particular the requirement for registration of a firearm and the safe keeping of firearms when used and not used.

35 I found the applicant to give frank and truthful evidence. The material indicates that he at all times assisted police while they were executing the search warrant in November 2002. In respect to the rifle and the pistol which were located outside the safe storage facility of the applicant, I find that the applicant failed to take all reasonable precautions to ensure their safe keeping as required by s.39(1)(a) of the Firearms Act. In this regard I find the failure in respect to the loaded rifle as being the more serious breach of this requirement. The fact that the firearm was behind the door and not seen by the police did not detract from its seriousness. At the same time I accept that the failure was for a relatively short period of time.

36 From the material before the tribunal the conduct appears to have been an isolated incident in that the applicant has not previously come to the attention of the respondent for failing to keep his firearms safely, even though he has been the holder of a firearms licence for many years.

37 In determining whether it is not in the public interest for the applicant to be issued with a firearms licence, the tribunal must make that determination as at the date of hearing having regard to all the circumstances including what has occurred in the intervening period since the occurrence of the inappropriate conduct. Furthermore, the determination is protective in nature and not punitive.

38 In this application, the conduct occurred 4½ years ago and I accept the applicant’s evidence that he fully appreciates the seriousness of his conduct and the consequences thereof. I am also satisfied that the applicant is now aware of the safe keeping requirements of the Firearms Act. It is also noted that the applicant no longer resides at Warialda. Accordingly, having regard to these factors and the fact that the contravening conduct was isolated in the context of a long history of being the holder of a firearms licence without the applicant ever coming to the attention of police in respect to his possession an use of firearms or otherwise, the fact that the applicant has only sought a category AB firearms licence and the respondent is otherwise satisfied that the applicant meets the necessary requirements to be issued with such a licence, in my opinion, the decision of the respondent is not the correct and preferred decision and should be set aside.

39 I would come to the same conclusion if the applicant’s earlier conduct in respect to the ‘offer to sell’ a firearm were to be taken into account. That conduct occurred more than 5 years ago and the respondent has readily acknowledged that there is no evidence of the applicant having been part of a criminal enterprise. The evidence in respect to this conduct is to some extent inconclusive and its overall seriousness is reflected in the penalty that was imposed by the magistrate. The applicant has also acknowledged that his comments to the undercover police officer were inappropriate and unwise. The conduct in question was directly relevant to the applicant’s then dealer’s licence. However, his current application does not include an application for such a licence. As mentioned above, it is only for a category AB licence. Had the applicant sought a dealer’s licence a different conclusion may have been reached.

40 The tribunal orders that the decision of the respondent is set aside and in substitution thereof a decision that the applicant be issued a category AB firearms licence.