PALMER and COMMISSIONER OF POLICE
[2008] WASAT 313
•23 APRIL 2008
PALMER and COMMISSIONER OF POLICE [2008] WASAT 313
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 313 | |
| FIREARMS ACT 1973 (WA) | |||
| Case No: | CC:139/2008 | 15 APRIL 2008 | |
| Coram: | DR B DE VILLIERS (MEMBER) | 23/04/08 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEVIN RAYMOND PALMER COMMISSIONER OF POLICE |
Catchwords: | Firearms Previous convictions Relevance of convictions that were not recorded under the Firearms Act 1973 (WA) Relevance of other behaviour and conduct Fit and proper Public interest |
Legislation: | Firearms Act 1973 (WA), s 11, s 11(1) Road Traffic Act 1974 State Administrative Tribunal Act 2004 (WA) |
Case References: | A and Commissioner of Police [2005] WASAT 121 Grover v Commissioner of Police [2005] WASC 263 Wignall and Commissioner of Police [2006] WASAT 206 |
Orders | 1. The application for a review of the decisions to revoke the .22 calibre firearm licenses and refuse the licensing of a .357 calibre hand gun license is dismissed.,2. The decision of the Commissioner of Police is affirmed. |
Summary | Mr Palmer sought a review of the decision by the licensing officer acting under the Firearms Act 1973 (WA) to refuse him to be licensed for a new handgun and to revoke two existing firearm licences. The licensing officer took into account information about Mr Palmer's criminal record, traffic offences, a restraining order and other incidents that were noted by the police but not prosecuted. Mr Skerritt, who appeared for Mr Palmer, contended that the information was out of date, irrelevant and that, unless evidence relates directly to offences under the Firearms Act 1973 (WA), it cannot be considered.,The Commissioner of Police defended its decision by saying that all information must be taken into account to enable the licensing officer to form an opinion as to the fit and properness of a person to be licensed.,The Tribunal rejected the contentions of Mr Skerritt. It found that all information regarding the behaviour and criminal record of Mr Palmer is relevant, especially since it signifies an ongoing disregard for the law over a period of time. The Tribunal also rejected the suggestion that only such offences that occur under the Firearms Act 1973 (WA) can be taken into account. The interest of the public demands that all criminal activities, traffic offences, outstanding charges and other information about the character of Mr Palmer ought to be taken into account.,The Tribunal affirmed the decision to revoke the two licenses and the refusal to issue a new licence. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : PALMER and COMMISSIONER OF POLICE [2008] WASAT 313 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 15 APRIL 2008 DELIVERED : EDITED REASONS DELIVERED ORALLY ON 23 APRIL 2008 FILE NO/S : CC 139 of 2008 BETWEEN : KEVIN RAYMOND PALMER
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms Previous convictions Relevance of convictions that were not recorded under the Firearms Act 1973 (WA) Relevance of other behaviour and conduct Fit and proper Public interest
Legislation:
Firearms Act 1973 (WA), s 11, s 11(1)
Road Traffic Act 1974
State Administrative Tribunal Act 2004 (WA)
(Page 2)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr A Skerritt
Respondent : Self-represented
Solicitors:
Applicant : O'Connor Lawyers
Respondent : Self-represented
Case(s) referred to in decision(s):
A and Commissioner of Police [2005] WASAT 121
Grover v Commissioner of Police [2005] WASC 263
Wignall and Commissioner of Police [2006] WASAT 206
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Summary of Tribunal's decision
1 Mr Palmer sought a review of the decision by the licensing officer acting under the Firearms Act 1973 (WA) to refuse him to be licensed for a new handgun and to revoke two existing firearm licences. The licensing officer took into account information about Mr Palmer's criminal record, traffic offences, a restraining order and other incidents that were noted by the police but not prosecuted. Mr Skerritt, who appeared for Mr Palmer, contended that the information was out of date, irrelevant and that, unless evidence relates directly to offences under the Firearms Act 1973 (WA), it cannot be considered.
2 The Commissioner of Police defended its decision by saying that all information must be taken into account to enable the licensing officer to form an opinion as to the fit and properness of a person to be licensed.
3 The Tribunal rejected the contentions of Mr Skerritt. It found that all information regarding the behaviour and criminal record of Mr Palmer is relevant, especially since it signifies an ongoing disregard for the law over a period of time. The Tribunal also rejected the suggestion that only such offences that occur under the Firearms Act 1973 (WA) can be taken into account. The interest of the public demands that all criminal activities, traffic offences, outstanding charges and other information about the character of Mr Palmer ought to be taken into account.
4 The Tribunal affirmed the decision to revoke the two licenses and the refusal to issue a new licence.
Issue
5 Mr Palmer seeks review of a decision of the Commissioner of Police (Commissioner) to refuse to issue him a firearm licence and the revocation of two previously issued licences. The refusal concerns a .357 calibre hand gun, and previously issued licences for two .22 calibre firearms, one for a hand gun and one for a rifle.
6 Oral reasons for decision were handed down on 23 April 2008. This is an edited version of those reasons.
Background
7 The background to the application is as follows.
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8 The application was received on 30 January 2008. The directions hearing took place on 14 February 2008, and the hearing on 15 April 2008. Both parties made written submissions.
9 The Commissioner filed two witness statements and both persons gave evidence.
10 Mr Palmer filed seven letters of reference and he also gave evidence.
11 By agreement between the parties, none of those who gave letters of reference were called to give evidence or to respond to questions.
Summary of facts
12 The facts are well set out in the respective submissions and evidence. The Tribunal has taken all of the information into account before coming to its decision.
13 The facts can be briefly summarised as follows.
14 Mr Palmer is 26 years of age. He sought and obtained previously two .22 calibre firearm licences, one for a rifle and one for a hand gun. He is a member of a shooting club and also uses the .22 calibre firearms for the eradication of vermin.
15 Mr Palmer applied for a .357 calibre revolver on 14 August 2007 and the purpose of that was for target practice at a club. The application was refused on 19 December 2007.
16 The grounds for refusal were twofold:
1) The Commissioner regarded that Mr Palmer was not fit and proper to be licensed. The reason for this opinion was Mr Palmer's criminal record; disorderly behaviour in public and obstructing a police officer in the discharge of his duties; and what was called 'systematic disregard' for the traffic laws of the state.
2) There was also reference to two domestic incidents in 2004 and 2007, which Mr Palmer was allegedly involved in, and the conclusion drawn by the Commissioner was that it was not in the public interest for Mr Palmer to be licensed.
17 Mr Palmer sought a review of the decision on the grounds that:
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- • the Commissioner took into account irrelevant information;
• none of the offences involved violence, weapons or threats of violence;
• none of the offences related to a firearms offence;
• the Commissioner took into account an incident that was not pursued through lack of evidence; and
• that the licensing officer erred to say that Mr Palmer was not a fit and proper person and it was not in the public interest for him to hold the licence.
Statutory framework
18 The Tribunal will next deal with the legal framework within which the review occurs.
19 The following principles serve as principles under the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the Tribunal's review function.
20 It is a hearing de novo, which means that all the information available to the Commissioner, plus any additional information that has since become available, must be considered.
21 The Tribunal acts as the decision-maker.
22 The Tribunal is not bound by the rules of evidence, but must comply with the rules of natural justice.
23 The Tribunal must take into account all the information and evidence before it and it may affirm the decision of the decision-maker, vary it or substitute it with a decision of its own.
24 The Tribunal, in essence, must balance the public and the private interest and make a best and preferable decision.
25 The licence to acquire a firearm is not a right, but a privilege; hence the regulatory regime whereby the obligation is on the applicant to demonstrate why he should be licensed.
26 The discretion of the Tribunal must be exercised against the provisions of the Firearms Act 1973 (WA) (Firearms Act).
(Page 6)
27 Section 11 of the Firearms Act provides that the licensing officer, or in this case the Tribunal, cannot grant an approval if the Tribunal is of the 'opinion' that it is not in the interest of public safety, or that the person is not a fit and proper person to hold the licence, or that the person is not fit and proper if a history or tendency towards violence is displayed. The discretion of the Tribunal is not limited to the specific considerations set out in the Firearms Act. The Tribunal may also take any other information into account when forming its opinion.
28 As far as the criminal record for traffic offences and domestic incidents is concerned, Mr Palmer has a number of criminal offences. That is not disputed. There were also two domestic incidents. One was the restraining order issued in Northbridge by the police on 15 April 2007 at the request of his partner, Ms Fiona Prosser, and the second is a complaint of an assault on a child of four years of age at the time. That complaint was not prosecuted due to lack of evidence.
29 The question for the Tribunal is whether these incidents could and should be taken into account and, if so, whether the Tribunal can form an opinion that Mr Palmer is not fit and proper or it is not in the interest of public safety for him to be licensed.
Submissions
30 The Tribunal will next deal with the submissions by the parties and then provide its consideration in regard to those submissions.
31 It is not disputed that Mr Palmer belongs to a shooting club, that he appears to be a good shooter and that he has not committed an offence under the Firearms Act. The restraining order is not a violence restraining order as provided for under the Firearms Act, and there is no issue taken by the Commissioner whether Mr Palmer has a genuine need as provided for in the Firearms Act.
32 As far as the letters of reference are concerned, these are of relevance to Mr Palmer's fit and properness. There were seven letters. All speak in positive terms of Mr Palmer. They confirm his shooting skills. None of the letters declare a full knowledge of his traffic and criminal record. It appears as if most, if not all, of the letters were written by persons close to Mr Palmer. In that sense, the letters are not particularly objective and helpful.
33 None of the letters address his apparent lack of respect for traffic laws. There is no acknowledgment in the letters of the domestic incidents that were taken into account by the Commissioner. There is no evidence from
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- Ms Prosser to support Mr Palmer. There is no evidence from Ms Prosser to support Mr Palmer's version of the 'police harassment', as he calls it, that took place on 25 November 2007.
34 The Stratco letter appears to be a general letter for employment purposes and not necessarily directed for these proceedings. None of these people were called to give evidence or to be examined, and Mr Skerritt, who acted for Mr Palmer, did not dwell on those letters. They were merely to the Tribunal for information. The Tribunal notes these letters, but attaches little weight to them for the reasons above.
Admissibility of information
35 The Tribunal will next deal with the admissibility of information regarding the domestic incidents.
36 Mr Skerritt submitted that the Tribunal cannot, and should not, take the information into account. The alleged assault was not pursued. There was no charge against Mr Palmer. He has had no opportunity to defend himself and, as far as he is concerned, the complaint was groundless.
37 Mr Skerritt emphasised that Mr Palmer should not be penalised and should be presumed innocent.
38 The Tribunal does not accept the contention of Mr Skerritt that this information cannot be taken into account.
39 In the matter of A and Commissioner of Police [2005] WASAT 121, the Tribunal found that it must take into account all information, including outstanding charges, before it comes to a decision. An appeal against the decision was dismissed in Grover v Commissioner of Police [2005] WASC 263. Although the A and Commissioner of Police decision related to the security industry, the same principle also apply to the licensing regime under the Firearms Act. The Tribunal is satisfied that it can also take into account records of incidents that were made by the police, even though no formal charges were pursued.
40 The purpose of these proceedings is not to make a finding of criminal misconduct. The purpose is whether an opinion can be formed for purposes of granting or refusing a licence under the Firearms Act. Even if the Tribunal takes such an incident/s into account, the presumption of innocence for purposes of criminal proceedings remains in favour of Mr Palmer. The public interest demands, however, that the Tribunal take into account all information,
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- including information of a restraining order to protect his partner, and a police report indicating that he might have been acting violently towards his partner's child.
41 In the A and Commissioner of Police matter, the Tribunal referred to several authorities to determine what information can be taken into account when a discretion of this nature is exercised. The Tribunal found that the existence of outstanding charges was relevant and that it could take into account such charges since the Tribunal may inform itself in any manner it sees fit according to the SAT Act.
42 The Tribunal emphasised in that matter - and I do so again in regard to the position of Mr Palmer - that:
(a) A presumption of innocence under general law does not mean the licensing authority or the Tribunal should ignore information laid before it when considering whether the applicant should be licensed.
(b) Although the applicant is presumed innocent, the Tribunal is not required to apply a beyond reasonable doubt test in exercising its discretion for purposes of the licensing of firearms.
43 The Tribunal is therefore satisfied that, in these proceedings, the Commissioner did not err by taking into account these two domestic incidents. The Tribunal will also take the incidents into account in forming its opinion.
Relevance of non-firearm-related offences
44 The Tribunal will next deal with the traffic and other offences, and the relevancy thereof.
45 Mr Skerritt contended that the traffic offences do not bear evidence in the relation to the test of 'fit and proper' for purposes of the Firearms Act. Mr Palmer, in evidence, suggested that most of the offences were 'minor' and were committed a long time ago, when he was young.
46 Mr Skerritt acknowledged that the term 'fit and proper' does not carry a precise meaning and must be applied in the context of the particular act, but, he argued, there must be relevancy - some connection between the criminal record and the possession of a firearm - and, according to him, none of the offences bear such relevancy to holding
(Page 9)
- a firearm. He contended there is no way that the traffic record 'can ever' - regardless of the seriousness of the incident - be considered a relevant consideration for the revocation of a firearm.
47 In regard to the offences of disorderly behaviour in public and obstructing a police officer arising from the events on 25 November 2007, Mr Skerritt contended that these do not relate to violence, that no weapon was used, that no threat was made to the police, and that the incident was isolated and out of character.
48 In regard to the offences committed before Mr Palmer had been licensed for the .22 calibre firearm licence, Mr Skerritt contended that those should not be considered, since it was so long ago, he had been licensed since then, and the background to the events leading to those offences had been explained by Mr Palmer during these proceedings. Those offences were, therefore, according to Mr Skerritt, completely irrelevant.
49 Mr Skerritt concluded that nothing in the criminal record of Mr Palmer could cause the Tribunal to form the opinion that he is not fit and proper to be licensed or that it is not in the public interest for him to be licensed.
50 The Tribunal does not accept these contentions for the following reasons:
(a) The Tribunal must take all information before it into account prior to making a decision. The public interest and the statutory framework under which the Tribunal functions demand no less. The Tribunal cannot censure information. It may attach less weight to some information than to others, but it must take all information into consideration.
(b) The Tribunal does not exercise its discretion in isolation, whereby some criminal acts or other incidents are not taken into account, merely because, at face value, they are not directly related to the Firearms Act. Mr Skerritt's line of argument suggests that, unless an offence or incident is directly related to an offence under the Firearms Act, it should not be considered by the Tribunal.
- The Tribunal rejects such an interpretation. An approach as suggested by Mr Skerritt would make a mockery of the discretion that the Tribunal is clothed with to make a decision after it has taken into account all information before it. The Tribunal must weigh all information before it in order to come to an informed and balanced conclusion.
- (c) The test of 'fit and proper' in the Firearms Act does not only refer to the technical ability and training of a person to handle a firearm, but also to the character of a person, his behavioural traits, his maturity and the appropriateness of him being licensed to carry a firearm. In light of the danger that firearms hold to the holder of the firearms and the community, the public interest demands that the licensing authority must guard against the licensing of persons who may cause harm, and who are not fit and proper to be licensed. It is an intentionally wide discretion afforded to the decision-maker by Parliament.
(d) In these proceedings, it is not any of the individual offences that, in isolation, weigh negatively against Mr Palmer's application, but rather the severity and regularity of the entire criminal record as well as other aspects of his conduct that were highlighted during the hearing. The Tribunal must take into account the trend set by his actions. It is the trend, rather than any individual act, that works against him.
To summarise, Mr Palmer is only 26 years of age, but in this short time he has amassed, in 2001, two drug-related convictions, two smoking implement convictions, an offence against the Firearms Act; since 2003, 16 offences under traffic legislation. During evidence, Mr Palmer described most of the offences under the Road Traffic Act 1974 (WA) (RT Act) as minor in nature, and suggested that they were committed when he was younger.
However, on closer questioning of the Tribunal, Mr Palmer admitted that a string of serious offences were committed in the past three years, and in fact, according to him, only one or two
- could perhaps be described as 'minor'. One of the offences that he regards as 'minor' is driving with a false number plate and causing excessive noise under the hoon legislation. The Tribunal does not, in light of his record, regard these as minor traffic offences.
- Mr Palmer's classification of these offences as 'minor' demonstrates his inability to comprehend the seriousness of his actions and his proneness to continue to offend. It may also explain his repeated offences. If an offence is regarded as 'minor', there is a greater likelihood of it being repeated. Some of the offences that he was convicted of during the past two years were:
• failure to display a number plate;
• twice convicted of hoon driving;
• failure to stop after an accident;
• reckless driving;
• causing excessive noise; and
• driving with no driver's licence.
In no court or tribunal can such information be disregarded or classified as 'minor', especially if the repeated nature is taken into account.
It appears to the Tribunal as if Mr Palmer fails to realise the seriousness of these incidents or to acknowledge in retrospect the danger he has put himself and members of the public in. He seemed more focused during cross-examination on defending and justifying his actions and trying to minimise the events than taking full responsibility thereof and showing remorse.
It would be irresponsible for the Tribunal not to take Mr Palmer's blatant disregard of the RT Act into account for purposes of forming a discretion under the Firearms Act. The public interest demands it.
(Page 12)
- The Tribunal accepts that Mr Palmer's handling of the firearms may be exemplary, that he has a long experience of firearms, and that he has not used a firearm in an inappropriate way, but the Tribunal's discretion goes wider.
- (e) In regard to the incident of disorderly behaviour and obstructing police officers, the evidence of Senior Constable Holland has confirmed the apparent erratic behaviour of Mr Palmer on the day. What should have been a routine matter got blown out of proportion, due to Mr Palmer's unwillingness to cooperate with the police. This again highlights his immaturity.
The Tribunal fails to understand why Mr Palmer felt intimidated by 'armed coppers' - the term he uses to describe the police officers. Does it perhaps suggest an underlying resistance to authority, or is it indicative of an immature response? All he needed to do was to give his name and particulars to the investigating officer. He responded, however, by providing a false name, Joe Doe.
What was surprising to the Tribunal was that, even during the hearing, Mr Palmer continued to defend his actions by saying his friends often call him Joe Doe. It again appears that he responds instinctively, that he refuses to accept responsibility and that he does blame-shifting.
The licensing officer, Superintendent Castlelow, was correct when he took the incident into account. The Tribunal will do the same.
(f) In regard to the two domestic incidents, the Tribunal notes that Mr Palmer did not take issue with the restraining order that was issued on 15 April 2007. He disputed the reason for issuing the order but did not call Ms Prosser to give evidence. Although no charges followed, the Tribunal nevertheless notes that the order was issued and that the incident that caused the order to be issued occurred in a public place, Francis Street in Northbridge. In regard to the alleged assault on the child, the Tribunal notes that no charges were brought, and that
- there was no follow-up of the investigation or other reported incidents.
- (g) It appears to the Tribunal, when all of this information and the convictions are considered, as if Mr Palmer has a serious problem with being a law-abiding citizen, particularly while on the road. He shows aggression, appears to display at least some 'show off' mentality or a level of immaturity. Most importantly, it appears that he does not learn from previous mistakes; thus, the repeat of serious infringements and the classification as 'minor' by Mr Palmer of offences that the public would regard as serious. He indicated that he has grown up during the past 12 months or so, but that is yet to be reflected in his on-road behaviour.
(h) The extensive traffic record, the seriousness of the offences, his behaviour on 25 November 2007, the domestic incidents and the lack of Mr Palmer to learn from his mistakes and his inability to take better care when behind a steering wheel combine to reflect negatively on his fit and properness to be licensed under the Firearms Act.
(i) Carrying a firearm requires a high level of maturity, responsibility and compliance with the laws of the land. Mr Palmer's behaviour falls short of that required behaviour.
(j) The Tribunal rejects the contention that the traffic record is completely irrelevant.
(k) The Tribunal rejects the contention that the convictions following the events of 25 November 2007 are not relevant.
(l) The wide discretion of the Tribunal was affirmed in the matter of Wignall and Commissioner of Police [2006] WASAT 206 at [287], in which it was found that:
It is quite clear that Parliament only intends persons to have approvals, permits and licences in respect of firearms if there is strict compliance with the requirements of the Firearms Act.
(Page 14)
- (m) The Tribunal also rejects the contention that Mr Palmer has been punished and should not be punished further by revocation of the licences. The purpose of these proceedings is not to punish Mr Palmer, but to determine the suitability of him to be licensed under the Firearms Act.
Conclusion
51 Section 11(1) of the Firearms Act provides that the Tribunal 'cannot' grant approval for a licence if it 'is of the opinion' that it is not in the interest of the public safety or if the person is not a fit and proper person to hold the licence.
52 The Tribunal concludes on the basis of the foregoing that there are sufficient and compelling grounds for it as decision-maker to form an opinion that Mr Palmer is not a fit and proper person to be licensed, that it is in the public interest for his two .22 calibre firearm licences to be revoked and for the .357 calibre hand gun application to be refused.
53 The decision of the Commissioner should therefore be affirmed and the application should be dismissed. This decision does not mean that Mr Palmer cannot again in future apply to be licensed. Superintendent Castlelow emphasised during the hearing that, if Mr Palmer mends his ways and if he can demonstrate in time to come that he has not re-offended, an application in due course may be considered favourably. The Tribunal encourages Mr Palmer to take up the Commissioner's representative on this challenge.
Orders
1. The application for a review of the decisions to revoke the .22 calibre firearm licenses and refuse the licensing of a .357 calibre hand gun license is dismissed.
2. The decision of the Commissioner of Police is affirmed.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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