Rodgers v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 167

CITATION:	Rodgers -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 167
DIVISION:	General Division
PARTIES:	APPLICANT William Rodgers RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013082
HEARING DATES:	07/06/2001
SUBMISSIONS CLOSED:	07/11/2001
DATE OF DECISION:	10/09/2001
BEFORE:	Britton A - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Australian Broadcasting Tribunal v Bond 1990 94 ALR 11
REPRESENTATION:	APPLICANT M Southwick, barrister RESPONDENT D Paterson, solicitor
ORDERS:	The Commissioner's decision to revoke Mr Rodgers' firearms licence is set aside.

1 William Rodgers (the applicant) has applied to the Administrative Decisions Tribunal (ADT) for a review of the decision made by a delegate of the Commissioner of Police, NSW Police Service (the Commissioner) to revoke his Category A and B firearms licence held under the Firearms Act 1996 (the Firearms Act) (the original decision). The licence was suspended on 26 August 2000 and revoked on 6 February 2001. At the request of the applicant an internal review was conducted. By notice dated 15 March 2001 the applicant was advised that the Commissioner’s original decision had been affirmed.

2 The issue for determination in this inquiry is whether the Commissioner’s delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: Administrative Decisions Tribunal Act (NSW) 1997 (the Tribunal Act), s. 63(1).

Relevant Legislation

3 The Firearms Act sets up a comprehensive scheme for the licensing of persons in New South Wales to possess and use firearms. The principles and objects of that Act are set out in s. 3.

4 Where a person has been granted a firearms licence the Firearms Act provides that the Commissioner may revoke it on one or more specified grounds. In this matter the Commissioner relies on the following provisions of the Firearms Act: s. 24(2) (a), s. 11(4) and s. 24(2)(c) of the Act and Clause 17 of the Firearms (General) Regulation 1997 (the Regulations).

5 Section 24 (2) of the Act relevantly provides:

(2) A licence may be revoked:
(a) for any reason for which the licensee would be refused a licence of the same kind or
(b) . . .
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence,
(d) for any other reason prescribed by the Regulations.
6 Section 11(4)(c) of the Firearms Act provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his/her intemperate habits or being of unsound mind.

7 Clause 17 of the Regulations provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for a person to whom it is issued to continue to hold it.

8 Section 75 of the Firearms Act provides that a person may apply to the ADT for a review of the Commissioner’s decision to revoke their firearms licence or permit. Section 63 of the Tribunal Act provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Evidence

9 The following facts are not in issue: on 26 August 2000 Mr Rodgers and his partner, Ms Zhi Ying Shi, were involved in a heated argument. No physical violence was involved. Mr Rodgers was intoxicated having consumed half a bottle of scotch. Ms Shi believed at the time of the incident that Mr Rodgers had threatened to shoot her. This threat is denied by Mr Rodgers who claims that Ms Shi mistook the word ‘wallop’ for ‘bullet’. In the course of this argument Ms Shi sought refuge with neighbours. The police were called and attended the premises. A search of the premises found no firearms, the applicant’s firearms being stored at all relevant times at a family property in the Mudgee area.

10 Ms Shi asked for the attending police to remain with her until friends arrived on the day of the incident. Attending officer, Constable Harmer organised by telephone for an interim Apprehended Violence Order (AVO) to be taken out against Mr Rodgers. On 29 August 2000 Ms Shi withdrew her application for an AVO and the interim order was set aside by Parramatta Local Court. The Commissioner’s decision to revoke the applicant’s firearms licence was triggered by this domestic dispute. Mr Rodgers and Ms Shi intend to marry at the end of this year.

11 Mr Rodgers gave evidence that on the day of the incident he was extremely upset as Ms Shi had announced without warning her plans to leave him. He claims his that his drunkenness on that day was an aberration; he could not recall ever being that drunk. He claims to be a social drinker, drinking beer occasionally, and spirits rarely. He says he does not drink to get drunk and has never received treatment for any alcohol or drug related problem. This evidence was broadly supported by Ms Shi.

12 A statement provided by Mr Rodgers’ doctor of eleven and a half years, Dr Adams, states that his patient has no history of alcohol or substance abuse. Work colleague, Mick Justic states that Mr Rodgers responsibly uses alcohol and he “has never witnessed any actions or symptoms [of Rodgers] which may be alcohol related.” A long-standing friend, Janice Seeto states that the applicant is a not a big drinker and “is very responsible…has no intemperate habits and would not harm anyone”.

13 A statutory declaration sworn by Constable Harmer and filed in these proceedings states that as he was leaving the incident a vehicle pulled up and a female passenger identifying herself as Mr Rodgers’ sister asked what was going on. According to Constable Harmer she volunteered, “My brother is an alcoholic. This isn’t the first time, I’m not going in there.” It is not in issue that neither the COPS Notice nor the Notice of the Suspension of the Firearms Licence or Permit both authored by Constable Harmer on the day of the incident, made no mention of any such conversation. In a report prepared by Constable Harmer dated 26 November 2000 stated “Relatives of Mr Rodgers attended the scene at the time and informed police that Mr Rodgers had for some time had a problem with alcohol.”

14 In a Statutory Declaration sworn by Mr Rodgers’ sister, Lynnette White, she states that she sees her brother regularly, he is not a heavy drinker; he does not have and never has had a drinking problem. She is his closest relative living in Sydney. Mr Rodgers claims that apart from his sister his only other relative living in Sydney is an uncle who he rarely sees.

15 In evidence Mr Rodgers strongly denies threatening to shoot Ms Shi claiming she must have mistakenly thought he said ‘bullet’, when in fact he used the word, ‘wallop’. Ms Shi gave evidence that while at the time of the incident she understood the applicant to have used the word ‘bullet’, she was satisfied having heard Mr Rodgers’ explanation [after the incident] that she had been mistaken. English was not her first language; prior to the incident she had not heard the term ‘wallop’.

16 A statement prepared on the day of the incident by Constable Harmer and signed by Ms Shi states that Mr Rodgers had said to her, “when these two guys [friend of Ms Shi] come to the house I will let them in then shoot then between the eyes then shoot you”. In evidence Ms Shi said she had not read the statement before signing, she was very upset and in a highly emotional state”.

Findings and Conclusions

17 Ms Patterson for the Commissioner submits that the incident demonstrates that the applicant is of intemperate habits and accordingly may not personally exercise continuous and responsible control over firearms. Accordingly, contends the respondent, pursuant to s. 11 (4)(c) and s. 24 (2) (a) of the Firearms Act , the decision to revoke the applicant’s firearms licence should be affirmed.

18 Mr Southwick for the applicant submits that the evidence does not demonstrate that his client is of intemperate habits. He argues that the Tribunal should give weight to the evidence of family and friends, supported by medical opinion, that the applicant does not and never has had a problem with alcohol. Mr Southwick invites the Tribunal to conclude that Constable Harmer’s evidence concerning the ‘phantom’ relative must be seen as unreliable in light of the evidence of the applicant and his sister, the later not being required for cross-examination. In assessing Constable Harmer’s evidence Mr Southwick argues that regard must be had to the fact that the first reference made by Constable Harmer to the ‘relative’ appears in a report prepared some three months after the incident. None of contemporaneous reports prepared by the Constable make any mention of a relative informing police that Mr Rodgers was an alcoholic.

19 Ms Patterson invites the Tribunal to draw the inference that Dr Adams’s evidence would not assist the applicant’s case as despite the respondent’s request the applicant failed to make Dr Adams available for cross-examination. The so-called ‘rule’ in Jones v Dunkel (1959) 101 CLR 298 relied on by the respondent is, in fact, a discretionary principle to the effect that the unexplained failure by the party who might be expected to call a particular witness, or to produce a particular piece of evidence, may lead to an inference being drawn that the witness or evidence would not have assisted that party’s case. In this case directions were made on 4 May 2001 requiring the respondent to advise the applicant whether any of the persons on whose statements the applicant seeks to rely would be required for cross- examination. The respondent requested that Dr Adams be available for cross-examination two days prior to the hearing. Mr Southwick advised the Tribunal that given the short notice it was not possible for Dr Adams to attend. Given the late notice provided by the respondent I decline to draw any adverse inference from Dr Adams’ non-attendance.

20 Section 11(4) (c) of the Firearms Act requires two elements to be satisfied. First, it must be established that the applicant be of intemperate habits (or unsound mind) and second, the Commissioner, (or the Tribunal in the case of a review decision), must have reasonable cause to believe that because of the applicant’s intemperate habits (or unsound mind) she/he may not personally exercise continuous and responsible control over firearms.

21 The Macquarie dictionary defines ‘habit’ to mean “ a disposition or tendency, constantly shown, to act in a certain way. ‘Intemperate’ is defined as “given to or characterised by immoderate indulgence in alcoholic drink”. The applicant readily concedes that on the day of the incident he was heavily intoxicated, however denies that his level of intoxication on that day is representative of his use of alcohol. In evidence he goes so far to claim that he could never recall being so drunk. Mr Rodgers’ claim that he does not and never has had a problem with alcohol is supported by the applicant’s sister, a friend of twenty years and work colleague.

22 The only evidence before the Tribunal to indicate that Mr Rodgers may be a habitual drunk is that provided by Constable Harmer. The applicant invites me to conclude that as none of the detailed and contemporaneous reports prepared by Constable Harmer make any mention of a relative it is possible that the Constable’s later recollection of events, as set out in his November 2000 Report and statement to the Tribunal may be faulty. Mr Southwick argues that as Constable Harmer regularly attends domestic disputes it is entirely probable that he may have confused this dispute with another.

23 There are of course any number of explanations to explain the apparently conflicting evidence of Constable Harmer and the applicant and his sister. It may be that the applicant and his sister lied to the Tribunal and Constable Harmers’ recollection is entirely accurate; it may be that a passer-by mischievously claimed to be Mr Rodger’s sister; or alternatively the explanation may lie in the scenario suggested by Mr Southwick.

24 Whatever the explanation I am not satisfied on the evidence before me that a proper evidentiary foundation exists to justify a finding that Mr Rodgers is of ‘intemperate habits’. Such finding would be in direct conflict with the medical evidence before me and the evidence of Mr Justic, Ms Seeto and Ms White. It is clear that to fall within s. 11(4) (c) it must be demonstrated that there is a disposition or tendency to consume immoderate amounts of alcohol. A single incident of drunkenness does not of itself establish disposition or tendency towards intemperate habits. This provision is clearly concerned within patterns of conduct, not isolated incidents. On balance I am not satisfied that the evidence taken as a whole supports a finding that Mr Rodgers is of intemperate habits. Accordingly s. 11(4) (c) of the Firearms Act cannot in my view be relied on as a ground to revoke Mr Rodgers firearms licence.

25 The second ground relied upon by the respondent is that the incident demonstrates that Mr Rodgers is not a fit and person to hold a firearms licence and accordingly pursuant to s. 24(2)(c) of the Firearms Act the Commissioner may revoke his licence.

26 The term ‘fit and proper’ is not defined in the Firearms Act. The authorities make clear that the concept of what constitutes a ‘fit and proper person’ is not capable of objective definition. Chief Justice Mason in Australian Broadcasting Tribunal v Bond 1990 94 ALR 11 [at 61] said:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

27 Later in that decision Justices Toohey and Gaudron [at 65] commented on the relationship of the term “fit and proper” and the activity in which the relevant person is engaged:
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. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

28 In determining whether a person is a fit and proper person to hold a firearms licence regard must be had to the licensing scheme set out in the Firearms Act and the objects of that statute. One of the underlying principles of the Firearms Act is to “confirm firearm possession and use as being a privilege conditional on the overriding need to ensure public safety”: s. 3. (1) (a).

29 Can it be said that the incident demonstrates that public safety may be endangered if Mr Rodgers were to continue to hold a firearms licence and accordingly he can no longer be regarded as a fit and proper person? In determining whether Mr Rodgers may pose a relevant risk in my view, it is irrelevant that at all relevant times Mr Rodgers’ did not have ready access to fireams. The question must be assessed as if at all relevant times he will have immediate access to firearms as the conditions of his licence permit. In any event I note that Mr Rodgers and Ms Shi intend to move to the Mudgee property in the near future where his firearms are stored.

30 The uncontested evidence before the Tribunal is that the incident was extremely heated although no physical violence was involved; Ms Shi was sufficiently concerned to seek refuge with a neighbour and to request the police to remain with her until friends arrived. Particularly damaging to Mr Rodgers is the contemporaneous note taken by Constable Harmer stating that Ms Shi had threatened to “shoot her between the eyes.” Mr Rodgers asserts, supported in evidence by Ms Shi, that no such threats were made, this misunderstanding arose because of Mrs Shi’s poor English. While it is possible that Ms Shi may have been unfamiliar with the term ‘wallop’ this explanation seems somewhat implausible given the reference to “between the eyes” in Constable Harmer’s contemporaneous report.

31 Taking the applicant’s evidence as its highest it is apparent that he physically threatened Ms Shi and her alleged boyfriend, she was sufficiently concerned to seek refuge with a neighbour and the circumstances of the incident were such that the attending officer formed the view that an interim AVO was warranted and that it was necessary to revoke the applicant’s firearms licence.

32 I do not accept Mr Southwick’s submission that the Commissioner’s finding, made in the context of the original licence application, that the applicant was a fit and proper person, cannot be rebutted on the strength of a single incident alone. The legislation makes clear that the Commissioner may at any time during the licence period take steps to revoke a firearms licence. The licence holder must remain a fit and proper person throughout the period of the licence. While I accept that an incident involving threats of violence is prima facie evidence that a person is not a fit and proper person to hold a firearms licence I am not persuaded that of itself such incident makes such finding mandatory. While highly relevant the fact that a holder of a firearms licence has threatened another person in the course of a heated and verbally violent argument does not mean that the Tribunal (or the administrator) is without discretion to take into account the range of factors referred to by Justices Toohey and Gauldron in Australian Broadcasting Tribunal v Bond.

33 The evidence before me is that the applicant is of acknowledged good character. His character witnesses attest that he enjoys a reputation as a peaceful and responsible person. With the exception of the testimonial provided by his father all character witnesses acknowledge the incident that caused the applicant’s licence to be revoked and consider this to be out of character.

34 Had Mr Rodgers acted on his threats of physical violence, in any way, in my view it would follow that the Tribunal could not be satisfied that Mr Rodgers did not pose a relevant risk to the safety of others. Such conduct would show a propensity to act irresponsibly in times of stress and conflict. Similarly had the evidence demonstrated that Mr Rodgers routinely (or even occasionally) abused alcohol I could not be satisfied that his misconduct would not be repeated.

35 However although Mr Rodgers’ conduct in respect of the incident was reprehensible, taking into account all relevant circumstances including his lengthy record of obedience to the law, the good character he enjoys within the community, in my opinion his conduct in respect of the incident does not of itself support a finding that he is no longer a fit and proper person to hold a firearms licence.

36 I turn now to the third ground advanced by the respondent namely that it is not in the public interest for the applicant to hold a licence.

37 The authorities make clear that the reference to public interest in clause 17 of the Regulations requires the interests of the whole community to be taken into account when determining whether a person should continue to hold a firearms licence. The respondent has taken me to the second reading speech of the (then) Attorney-General which confirms that it is the intention of the legislation that firearms possession and use be seen as a privilege conditional on the overriding need to ensure public safety.

38 In relation to the public interest ground the Commissioner relied on the same arguments as advanced in respect of the applicants’ fitness and propriety. No additional material was put on to support the respondent’s public interest submission.

39 Having found that the applicant is a fit and proper person and does not pose a relevant threat to public safety, and in the absence of any other material to support the respondent’s argument that the applicant should not hold a licence on public interest grounds, I do not consider that it would be contrary to the public interest for Mr Rodgers to hold a firearms licence.

40 Accordingly I conclude that the correct and preferable decision is that there are no grounds in the Firearms Act or Regulations that warrant the revocation of Mr Rodgers’ firearms licence.

Orders

41 The Commissioner’s decision to revoke Mr Rodgers’ firearms licence is set aside.