Pantle v Commissioner of Police

[2001] NSWADT 207

CITATION:	Pantle -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 207
DIVISION:	General Division
PARTIES:	APPLICANT Adam Pantle RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013202
HEARING DATES:	12/11/2001
SUBMISSIONS CLOSED:	11/12/2001
DATE OF DECISION:	12/04/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	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 Crimes Act 1900 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Sobey v Commercial Private Agent’s Board [1979] 22 SASR 70 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Re Milte & Ors, Legal Practitioners (1991) 22 ATR 740 In New South Wales Bar Association v Hamman [1999] NSWCA 404
REPRESENTATION:	APPLICANT R Frodsham, agent RESPONDENT J Klarica, barrister
ORDERS:	The decision of the Commissioner not to issue Mr Pantle with a Category A and B firearms licence is set aside.

1 This is an application for a review of a decision of the Commissioner of Police (the Commissioner) not to grant Mr Pantle a Class A and B firearms licence. The reasons for the refusal were that Mr Pantle is not a fit and proper person to hold a licence and that it is not in the public interest for him to do so.

2 The Commissioner relied on the fact that Mr Pantle was found guilty, with no conviction recorded, of possession of a prohibited plant in 1994. The second reason for refusing Mr Pantle’s application was his conduct in relation to shooting on the property of a Mr Burrell in 1996 and subsequently making a false report to police that his pistol had been stolen from his car.

3 About a year after the incident on the property, police interviewed Mr Pantle in relation to another matter. At that interview, Mr Pantle admitted to making a false report to police. On 10 October 1997, the Commissioner revoked Mr Pantle’s target pistol licence and shooters licence. He has not had a firearms licence since that date. He applied again for a Category A and B (shooters) licence on 4 May 2001. It is the Commissioner’s refusal to issue that licence that is the subject of his application to the Tribunal.


Jurisdiction
4 The Tribunal has jurisdiction to hear this decision pursuant to s 75(1)(a) of the Firearms Act and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Issue
5 The issue in this case is whether the Commissioner made the correct and preferable decision in refusing to grant Mr Pantle a Category A and B firearms licence. In reviewing that decision, the Tribunal must take into account any relevant factual material and any applicable written or unwritten law: s 63 ADT Act.

Evidence and findings
6 Apart from a few minor points, there was no conflict in relation to the evidence. In 1994 Mr Pantle was convicted of possessing a prohibited plant (marijuana) and fined $500. He appealed against the severity of this sentence to the District Court. Pursuant to the now repealed s 556A of the Crimes Act 1900 , the District Court found the charge proved but did not proceed to a conviction on the condition that he enter into a bond to be of good behaviour for 12 months.

7 The circumstances of this offence were that Mrs Pantle had agreed that a friend could rent a bedroom in their house. The friend grew some marijuana plants on the balcony. When the friend moved out, neither Mr or Mrs Pantle removed the plants. Police received information that marijuana plants were on the premises and went to the house. Mr Pantle agreed that the plants were in his possession even though he had not put them there. Rather than both Mr and Mrs Pantle being charged with this offence, Mr Pantle agreed to be charged. He pleaded guilty.

8 The second reason for refusing Mr Pantle’s application for a licence relates to an incident in June or July 1996 when Mr Pantle went to a property at Bungonia owned by Bruce Burrell and his wife. Mr Burrell’s wife was a family friend of Mr Pantle. Mr Pantle was a member of a pistol club at the time of this visit and had been the president of the club in 1996. At that time he was licenced to possess pistols for the purpose of target shooting (Category H licence) and rifles to hunt and target shoot (Category A and B licence). When he visited Mr Burrell in 1996, Mr Pantle took certain firearms including his .308 calibre rifle and a .22 calibre target pistol. In an interview with police on 27 June 1997, police asked Mr Pantle where the pistol could be used. Mr Pantle replied "Only at the Pistol Club." Mr Pantle’s said that Mr Burrell told him that it was legal for him to take his firearms to the property for Clay Target shooting. Despite this evidence, I am satisfied that Mr Pantle knew that it was unlawful for him to use his pistol on the property.

9 Mr Pantle and Mr Burrell did some clay target shooting during the day, but they also shot animals at night. On the particular night in question, Mr Burrell drove with the pistol on his lap and Mr Pantle shot the animal with his rifle. If he did not kill the animal completely, Mr Burrell would shoot the animal with the pistol. At the end of the evening, Mr Pantle thought Mr Burrell had the pistol and they both went to bed.

10 In his oral evidence, Mr Pantle said that he asked Mr Burrell where the pistol was before he went to bed. This is not consistent with the statement he made to police on 30 June 1997. It is now five years after the incident occurred. Mr Pantle’s recollection is likely to be more unreliable now than it was in 1997. For that reason, I prefer the version of events in his statement.

11 The following morning Mr Pantle and Mr Burrell cleared the carcasses and then Mr Pantle asked Mr Burrell where the pistol was. He said he didn’t know where it was. Mr Pantle then looked for the pistol in the house, in the car they had been using and on the property. Mr Pantle looked for a few hours and Mr Burrell finally said to Mr Pantle "Don’t report it yet, it will probably turn up." Later in the week, Mr Pantle rang Mr Burrell and asked him if he had found the pistol. Mr Burrell told him not to talk about it on the phone but to come and visit him. Mr Burrell said to Mr Pantle "I don’t want the report saying it was lost on my property, what about the pistol being lost between your house and the Pistol Club?" Mr Pantle and Mr Burrell decided to report the pistol stolen from outside the club at The Rocks.

12 Soon after this conversation, Mr Pantle went to the police station at The Rocks and reported that his pistol had been stolen from his car. He says that the only reason he made this false report was that he was influenced to do so by Mr Burrell. Mr Pantle said that Burrell told him that if he told police he lost the pistol on his property he would be charged with firearms offences and lose his licence.

13 When Mr Pantle first met Mr Burrell he thought he was a friendly and pleasant fellow, but he has since come to believe that he stole his pistol and tried to cover up that fact by saying it was lost.

14 Detective Warren gave evidence that when he was investigating the disappearance of Mrs Kerry Whelan Mr Burrell was a suspect. Police searched Mr Burrell’s property and found some ammunition which Mr Burrell said belonged to Mr Pantle. Police then interviewed Mr Pantle in relation to his knowledge of Mr Burrell. At that interview Detective Warren asked Mr Pantle if he had made a report to police about a stolen pistol. Mr Pantle agreed that he had made such a report and said that the report was false. He told Detective Warren that the pistol had been lost on Mr Burrell’s property and that he believed that Mr Burrell had stolen it.

15 Detective Warren said that Mr Pantle was never charged with public mischief in relation to this report, or any firearms offences in relation to hunting on Mr Burrell’s property. The reason he was not charged was because those matters were statute barred by the time police became aware of them. Detective Warren said that Mr Pantle was aware that he was not permitted to take any of his pistols onto Mr Burrell’s property for the purpose of target shooting. In Detective Warren’s view, Mr Pantle has been irresponsible by taking the pistol to Mr Burrell’s property and allowing Mr Burrell to use and retain possession of the pistol.

16 Mr Pantle gave evidence that he is active in community sporting activities including surf life saving and Little Athletics. He tendered references from four people who had prepared them for the purposes of the possession of drug charges in 1994. He tendered two more recent references from family friends that attested to his good character. He said he feels guilty about what happened and regrets his behaviour.

17 Mrs Pantle gave evidence that corroborated Mr Pantle’s evidence in relation to the circumstances surrounding the charges for possession of a prohibited plant. She also attested to Mr Pantle’s good character saying that he was a very good husband and father and that he was involved in community sporting and other activities. She said he handles firearms responsibly.

18 Mrs Pantle tried to discourage Mr Pantle from giving a false report to the police, but says he did so because Mr Burrell had convinced him that he would be charged with firearms offences if he said he lost it on the property.


Legislation
19 The Firearms Act sets up a comprehensive scheme for the licensing of persons in New South Wales to possess and use firearms. Section 11 sets out the circumstances in which the Commissioner must not issue a licence. So far as it is relevant, that section states that:
(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) . . .
(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
(5) A licence must not be issued to a person who:
(a) . . .
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is n offence under New South Wales law, or
(c) . . .
(d) . . .
(e) . . .
(7) The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
20 Certain offences specified in the Firearms (General) Regulation 1997 (the Regulation) disqualify applicants from obtaining a licence. Section 5 of the Regulation states that:
For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(b) Offences relating to prohibited drugs etc
An offence in respect of a prohibited plant or drug committed under:
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).
Applicant’s submissions
21 Mr Pantle indicated that he never intends to apply for a pistol licence again but he would like a shooters licence so that he can participate in target shooting at a club. He has now been without a licence for four years and feels that he has learnt his lesson. There is no evidence that he is a danger to the public.

Respondent’s submissions
22 Mr Klarica on behalf of the Commissioner said, he has concerns about Mr Pantle being issued with a firearms licence due to his past conduct. This conduct comprises:
· allowing Mr Burrell to have possession of his pistol without inquiring whether he had a licence to possess such a firearm;
· allowing Mr Burrell to use the pistol for hunting animals when the licence was for target shooting only;
· failing to store his pistol in accordance with statutory requirements; and
· making a false statement to the police.
23 In his undated letter to the Firearms Registry the applicant states that the false report to the Police "was made under duress". Mr Klarica submitted that the evidence does not disclose that any threats were made, so that Mr Pantle was not under duress.

24 It was a year later, when interviewed by police, that he admitted making a false statement. Even though he was not charged with any offences because they were statute barred, his conduct is relevant to the issue of whether he is a fit and proper person to have a firearms licence. In addition, if Mr Pantle had been convicted firearms offences or of causing a public mischief he would have been precluded from obtaining a firearms licence for ten years.

25 The firearm has not been found. There is a possibility that it could have been used illegally. In these circumstances there is a legitimate concern in relation to public safety.


Reasons and decision
26 The District Court’s finding in relation to possession of a prohibited plant is not a prescribed offence under the Firearms Act because Mr Pantle was not "convicted" of that offence. Rather the offence was proved and, under s 556A of the Crimes Act 1900 (since repealed), the court did not proceeding to a conviction. The evidence in relation to this offence, which was not disputed, was that Mr and Mrs Pantle did not bring the plants onto their premises. They did not smoke marijuana or use the plant for any purpose.

27 A leading decision on the issue of the meaning of "fit and proper person" is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ held 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.
28 The circumstances of the offence for possession of a prohibited plant are not directly related to any activities that Mr Pantle would be engaged in if he had a firearms licence. Nor is the offence a serious one, given the circumstances. In Sobey v Commercial Private Agent’s Board [1979] 22 SASR 70 at 75 the Court held that previous offences are of crucial importance in determining whether a person is a fit and proper person. Despite this observation, in the circumstances of this case, Mr Pantle’s conviction for possessing a prohibited plant is not a significant matter in assessing his fitness to hold a firearms licence or whether it is in the public interest for him to hold such a licence.

29 Mr Pantle’s conduct in relation to the second incident is far more relevant and serious. Firstly, he took a pistol to Mr Burrell's property when he knew that the licence in relation to that firearm only allowed him to participate in target shooting at an authorised club: Firearms Act s 7(2). Secondly he allowed Mr Burrell to use the pistol without checking whether he had a licence to use a pistol for the purpose of primary production (suppression of vertebrate pest animals) or any other purpose: Firearms Act s 19(2)(b) and s 7(2)(b). Finally, during the night in question, Mr Pantle failed to store the pistol in accordance with the requirements in s 41(1)(a) of the Firearms Act. He did not ask Mr Burrell for the pistol after they returned from shooting on the property. Consequently Mr Pantle did not meet his storage obligations.

30 Mr Pantle has not been charged with any of these matters because they were statute barred. Even so, by his own admissions, he has engaged in conduct that could amount to a breach of three provisions of the Firearms Act. A conviction for these offences would have meant that Mr Pantle would have been refused a licence on mandatory grounds for 10 years: s 11(5)(b). In the absence of such convictions, his conduct is still relevant to his fitness to hold a firearms licence and to the question of whether it is contrary to the public interest for him to do so.

31 Finally, Mr Pantle made a false report to police about what had happened to the pistol. While I appreciate that Mr Pantle felt under pressure from Mr Burrell, part of that pressure resulted from a fear that he would lose his licence because he had acted unlawfully in taking the pistol to the property and allowing Mr Burrell to use it. Mr Pantle’s own actions, as well as pressure from Mr Burrell, contributed to his motivation to give a false report to the police.

32 Giving a false report to police that a firearm has been stolen is a serious matter. One of the objects of the Firearms Act is to improve public safety by promoting the safe and responsible storage and use of firearms: s 3(1)(b). Mr Pantle knew that his pistol was somewhere on the property at Bungonia. When he was unable to find it, he should have reported to police that it was missing straight away. This would have minimised any possibility that the pistol would be used to inflict a deliberate or accidental injury.

33 I find that Mr Pantle was influenced by Mr Burrell to give a false report to police. I also accept that Mr Pantle is remorseful about his behaviour and that it is now five years since the incident occurred. Apart from his conduct in relation to the pistol, he is a person of good character. It is also relevant that he is only applying for a Category A and B licence, not a Category H licence for a pistol.

34 A critical feature of this case is that Mr Pantle’s licence was revoked on 10 October 1997 on the basis of the same matters that the Commissioner is now refusing to issue him with a licence. Mr Pantle was found not to be a fit and proper person to hold a licence at that time. That does not mean that he can never be issued with a firearms licence again. In cases involving professional misconduct of legal practitioners, the Court must ask whether the practitioner whose character and conduct is under review can properly be held out as a fit and proper person to remain a practitioner of the Court. (Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 442-444). In many cases involving professional misconduct, the court has left open the possibility that at some later stage the practitioners would be able to persuade the Court that they were fit persons to be readmitted. (See for example, Re Milte & Ors, Legal Practitioners (1991) 22 ATR 740.) In New South Wales Bar Association v Hamman [1999] NSWCA 404 para 101 the Court (Mason P Priestley JA and Davies AJA) said that "The door to readmission is never closed."

35 Similarly, in this case, it cannot be assumed that Mr Pantle is will never be a fit and proper person to be issued with a firearms licence or that it will always be contrary to the public interest for him to have a licence. The circumstances which suggest that he should not be issued with a licence are that he:

· took his pistol to the property and allowed Mr Burrell to use it for an unauthorised purpose;
· failed to store his pistol in accordance with statutory requirements;
· failed to report the loss of the pistol to police straight away; and
· gave a false report to police.
36 The circumstances which suggest that he should be issued with a licence are that:

· it is now more than five years since these incidents occurred,
· he was influenced by Mr Burrell to give a false report to police;
· he is otherwise of good character;
· he is remorseful and understands the implications of his past conduct; and
· he is now applying only for a shooters licence and not a pistol licence.
37 One of the principles of the Firearms Act is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety": s 3(1)(a). Mr Pantle gave convincing evidence of his remorse in having given a false report to police. I am satisfied he would not engage is similar conduct again and that he now understands the importance of the complying with the requirements of the Firearms Act . It is five years since these incidents occurred. Having heard Mr Pantle’s evidence, I am satisfied that despite his previous conduct, he is now a fit and proper person to have Category A and B licence and it would not be contrary to the public interest for a licence to be issued.

Orders
38 The decision of the Commissioner not to issue Mr Pantle with a Category A and B firearms licence is set aside.