Simpson v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 226

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Simpson v Commissioner of Police, NSW Police Force [2016] NSWCATAD 226
Hearing dates:	16 August 2016
Date of orders:	16 August 2016
Decision date:	16 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision to refuse to grant Mr Simpson’s application for a firearms licence is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW - Firearms Act - firearms licence – refusal to grant licence - offence relating to the possession or use of a firearm or any other weapon - mandatory refusal
Legislation Cited:	Firearms Act 1996 Firearms Regulation 2006 Weapons Prohibition Act 1998 Summary Offences Act 1988
Texts Cited:	Macquarie Concise Dictionary Third Edition
Category:	Principal judgment
Parties:	Adrian Simpson (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: A Simpson (Applicant in person) Office of the General Counsel, NSW Police Force (Respondent)
File Number(s):	1610426

REASONS FOR DECISION

1. Mr Simpson applied to the Respondent under the Firearms Act 1996 (“the Act”) for a Category AB firearms licence. This application was refused on the grounds that he was not considered to be a fit and proper person to hold a licence, that there was reasonable cause to believe that he may not exercise continuous and responsible control over firearms and that it was not in the public interest for him to hold a licence.

2. The decision maker relied on Section 11(5)(b) of the Act which provides that the Commissioner of Police must not issue a licence to a person if satisfied that the person 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 Firearms Regulation 2006 (“the Regulations”), whether or not the offence is an offence under New South Wales law.

3. Clause 5(1)(a) of the Regulations provides for offences relating to the possession or use of firearms or weapons 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).

4. It is not in dispute that on 9 June 2011 Mr Simpson was convicted of the offence 'Have custody of an offensive implement in a public place'. It is also not in dispute that the offensive implement to which the offence related was a police baton.

5. The decision maker was of the view that the offence is a “prescribed" offence as outlined in clause 5(1)(a) of the Regulations and that no discretion exists for the granting of a licence in this particular situation and according, the licence application must be refused.

6. Mr Simpson disputes the decision to refuse his licence application and has applied to the Tribunal for external review.

7. The Respondent argued that the matter should be dismissed on the basis that the refusal was mandatory. The application came before me on 16 August 2016. On that occasion I determined that the decision to refuse to grant the licence should be affirmed and I gave brief reasons for my decision. Mr Simpson has requested written reasons for my determination. These reasons are provided in response to that request.

Applicable legislation

8. The principles and objects of Act are set out in section 3 which provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a

safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

9. Section 11(5)(b) of the Act provides:

11 General restrictions on issue of licences

…

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

…

(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 an offence under New South Wales law, …

10. Clause 5(1)(a) of the Regulations provides:

5 Offences that disqualify applicants

(1) 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:

(a) An offence relating to the possession or use of a firearm, or any other weapon, 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).

...

11. Section 11B of the Summary Offences Act 1988 provides:

11B Custody of offensive implement

(1)   A person shall not, without reasonable excuse (proof of which lies on the person), have in his or her custody an offensive implement in a public place or a school.

Maximum penalty: 50 penalty units or imprisonment for 2 years.

(2)   If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive implement be forfeited to the Crown, and the implement is forfeited accordingly.

(3)   In this section: offensive implement means:

(a)   anything made or adapted for use for causing injury to a person, or

(b)   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

12. Section 27D of the Summary Offences Act 1988 provides:

27D Unlawful possession of offensive weapons or instruments

(1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her possession an offensive weapon or instrument in a place of detention.

Maximum penalty: imprisonment for 2 years or 50 penalty units, or both.

(2) If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive weapon or instrument be forfeited to the Crown, and the weapon or instrument is forfeited accordingly.

(3) In this section,

"offensive weapon or instrument" has the same meaning as it has in the Crimes Act 1900 .

13. Section 4 of the Crimes Act 1900 provides:

"Offensive weapon or instrument" means:

(a) a dangerous weapon, or

(b) any thing that is made or adapted for offensive purposes, or

(c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

14. Schedule 1 to the Weapons Prohibition Act 1998 (“the WPA”) identifies a number of prohibited weapons. Clause 2 of Schedule 1 to the WPA provides:

2   Miscellaneous weapons

...

(17)   A side-handled baton or any other similar article consisting of a baton, staff or rod that is made of any hard substance and has fitted to one side a handle, whether or not that handle is permanently fixed, but not including any such article that is produced and identified as a children's toy.

(17A)   An extendable or telescopic baton.

Issue for determination

15. The issue for determination is whether the decision to refuse to grant the licence was the correct and preferable decision.

16. Relevant to that issue is the question as to whether Mr Simpson has been convicted of an offence relating to the “possession or use of … any other weapon”. That is, is a police long baton a weapon for the purposes of section 11(5)(b) of the Act.

17. If a police long baton is a weapon for the purposes of section 11(5)(b) of the Act then the Commissioner has no discretion and must refuse to grant the licence. In conducting this review the Tribunal stands in the shoes of the Administrator and make the correct and preferable decision having regard to all relevant material. If the Commissioner has no discretion to grant the licence then the Tribunal does not have that discretion.

Mr Simpson’s case

18. Mr Simpson argued that the implement to which the offence related was a police long baton and that a police long baton is not listed as a prohibited weapon under the WPA.

19. Mr Simpson concedes that a police extendable baton and a side handled police baton are prohibited weapons under the WPA but says that a police long baton is not listed in the schedule and therefore is not regulated under the WPA. He stated that this was confirmed to him by the New South Wales Firearms Registry.

20. Mr Simpson doesn’t dispute the fact that he was convicted. However, he says that the Summary Offences Act provides for two separate charges - an offensive implement charge and an offensive weapon/instrument charge. He was charged with possession of an offensive implement in a public place and was not charged with a weapons offence. He contends that for the purposes of the Summary Offences Act an offensive implement is not the same as an offensive weapon. The term ‘offensive implement’ is defined in section 11B of the Summary Offences Act. The term ‘offensive weapon’ is defined in 27D of the Summary Offences Act. He contends that the term ‘offensive implement’ does not have the same meaning as ‘weapon’ under the Act and so they are two separate offences under the Act.

21. He does not agree that a baton is made or adapted for use for causing injury to a person for the purposes of section 11B(3)(a) of the Summary Offences Act. He submits that it is a defensive tool and that the police use it as a defensive tool. He says that it is not their training or education to use a baton as a weapon to cause injury or harm. They use it to defend themselves or protect others from harm.

The Commissioner’s case

22. Mr Steptoe appeared on behalf of the Commissioner. He referred to the Macquarie Concise Dictionary Third Edition which defines ‘weapon’ as:

1. any instrument for use in attack or defence in combat, fighting, or war, as a sword, rifle, cannon; etc.

2. anything serving as an instrument for making or repelling an attack

23. Mr Steptoe submitted that section 11(5)(b) of the Act deals with an offence relating to the possession of a weapon. He submits that a baton is a weapon under the Act. This is to be distinguished from definitions in other legislation such as the Summary Offences Act because the Firearms Act contemplates that more than one offence may fall within the prescribed offence.

Discussion

24. It is common ground that in order for the offence for which Mr Simpson has been convicted to result in the mandatory refusal of the licence application, the offence must relate to the possession of a firearm or any other weapon. There is no suggestion that the offence related to the possession of a firearm. The relevant question is therefore whether the baton is ‘any other weapon’ for the purposes of the Act.

25. If the conviction had been under section 27D of the Summary Offences Act (the offence of possession of offensive weapons or instruments) there would be no doubt about it. However, the offence was under section 11B of the Summary Offences Act – the offence of having custody of an offensive implement. So the question then is whether or not the offence of having custody of an offensive implement is within the bounds of clause 5(1)(a) of the Regulations which refers to an offence “relating to the possession or use of a firearm, or any other weapon”.

26. In my view it is appropriate to adopt the common usage definition of the term ‘weapon’ for the purpose of construction of clause 5(1)(a) of the Regulations. As noted above, the Macquarie dictionary defines a weapon as “any instrument for use in attack or defence”.

27. I agree with Mr Simpson that this is a wider definition than that found in the Summary Offences Act. However, the expression “relating to” in clause 5(1)(a) of the Regulation is very broad. Further, I agree with Mr Steptoe’s observation that the Firearms Act contemplates that more than one offence may fall within the prescribed offence. A broad definition of the term ‘weapon’ will allow for that approach. This construction is also consistent with the principles and objects of Act are set out in section 3 of the Act and in particular the object to provide strict requirements that must be satisfied in relation to licensing of firearms.

28. Mr Simpson has argued that a baton is a defensive item used to protect a person not to cause or injure harm. That may be correct. However, as noted, the Macquarie Dictionary definition of ‘weapon’ includes an instrument that is used for defence.

29. In my view, if the Macquarie Dictionary definition of ‘weapon’ is adopted for the purposes of clause 5(1)(a) of the Regulations, it must follow that a baton is a weapon as defined there. Given that Mr Simpson’s offence relates to the baton it must also follow that it is an offence relating to a weapon.

30. In the circumstances I agree with Mr Steptoe that because Mr Simpson’s offence was within the ten year period prescribed by section 11(5)(b) of the Act, the licence must not be issued.

31. The Commissioner has no discretion to issue the licence and therefore the Tribunal has no discretion to be able to grant the licence. It must follow that the decision to refuse to grant the licence is to be affirmed.

Order

The decision to refuse to grant Mr Simpson’s application for a firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 October 2016