Skara v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 178

CITATION:	Skara -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 178
DIVISION:	General Division
PARTIES:	APPLICANT Angelko Skara RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003242
HEARING DATES:	22/09/2000
SUBMISSIONS CLOSED:	09/22/2000
DATE OF DECISION:	12/01/2000
BEFORE:	Rice S - 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 Firearms (General) Regulation 1997
CASES CITED:	Ward v Commissioner of Police [2000] NSWADT 28 Nasr -v- Commissioner of Police [2000] NSWADT 138 R v Miller [1954]2 AllER 529 Toleafoa (No 2) v Commissioner of Police [2000] NSWADT 48 Sobey v Commercial Private Agents Board (1979) 22 SASR 40 Ziems v The Prothonotary of The Supreme Court of New South Wales (1957) 97 CLR at 302 Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 Howells -v- Commissioner of Police [2000] NSWADT 120 O'Sullivan v Farrer (1989) 168 CL.R 210 Queensland Electricity Commission and Ors Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131
REPRESENTATION:	APPLICANT M Graham, barrister RESPONDENT J Tunks, solicitor
ORDERS:	1. The decision of the Commissioner of Police to revoke the applicant's licence to possess and use a firearm under the Firearms Act 1996 is set aside; 2. In substitution the decision is made not to revoke the applicant's licence to possess and use a firearm under the Firearms Act 1996; 3. No award of costs; 4. Direct that the Exhibits numbered 1 to 6 inclusive be returned to the applicant.

1 Mr Skara holds a Category A/B licence under s8 of the Firearms Act 1996. The licence entitles Mr Skara to possess or use the types of firearm covered by categories A and B, for a genuine reason within the meaning of s12 and its Table. Mr Skara holds the licence for the genuine reasons of sport/target shooting, and recreational hunting/vermin control.

2 On 18 October 1999 Mr Skara parked his car in a metered zone, and overstayed the time limit. He returned to his car to find that a parking officer, who was nearby, had just issued him with an infringement notice.

3 Mr Skara swore at the parking officer, and spat at her through the car window before driving off. Mr Skara disputes the facts, and I address that below.

4 Mr Skara was charged with behaving in an offensive manner (s4(1) Summary Offences Act) and with assaulting an officer in execution of her duty (s58 Crimes Act). On 8 November Mr Skara pleaded guilty to both charges and was fined $200 for the former offence and $600 for the latter.

5 On 13 April 2000 Senior Constable Billingham of Nelson Bay Police recommended that Mr Skara’s licence be revoked in the following terms:

The . . . offence is an offence of violence and due to the circumstances relating to the matter Police are not convinced that it is in the public interest for the licence holder to continue to hold a shooters licence.

6 An undated Revocation Order was issued by the Manager of the Firearms Registry, and was served on Mr Skara on 8 June 2000. Mr Skara surrendered his licence, and his two registered firearms, as required by s25 of the Firearms Act.

7 On the same date Mr Skara sought an internal review of the decision to revoke his licence. On 19 June a delegate of the Commissioner decided that the original decision to revoke the licence should stand.

8 On 18 July 2000 Mr Skara lodged an application for review of the decision to revoke his licence.

Grounds for revocation

9 The power to revoke a licence is in s24 of Firearms Act 1996. The grounds for revocation are in s24 of the Act, and in the Firearms (General) Regulation 1997.

10 The Commissioner has submitted to me that the correct and preferable decision would be to revoke Mr Skara’s licence on the any of the following 3 grounds under s24(2):

(a): Mr Skara would, if he were an applicant, be refused a licence because of the commission by him of an offence involving violence (cl.5 of the Regulation),
(c): Mr Skara is no longer a fit and proper person to hold his licence,
(d): a reason prescribed under the Regulation, ie it is not in the public interest for Mr Skara to hold his licence (cl.17(1)).

11 I agree that there are no other provisions of the Firearms Act and the Firearms (General) Regulation relating to revocation of a licence that are relevant in Mr Skara’s circumstances.

Offence involving violence

12 In my view s24(2)(a) is not relevant to Mr Skara’s circumstances. The section says:

A licence may be revoked for any reason for which the licence would be required to be refused a licence of the same kind.

13 The Commissioner submits that such a reason is in s11(5)(b):

A licence must not be issued to a person who has . . . been convicted . . . of an offence prescribed by the Regulations.

14 The Commissioner submits that Mr Skara has been convicted of an offence prescribed by cl.5(c)(i):

An offence . . . involving the infliction (or attempted infliction) of actual bodily harm to a person . . . in respect of which . . . a penalty of $200 or more has been imposed

15 The Commissioner submits that the offence of which Mr Skara was convicted involved the infliction or attempted infliction of actual bodily harm. I disagree.

16 The matter involves a charge of mere assault, though against an officer, and not a charge of inflicting or attempting to inflict actual bodily harm. Mr Skara was not, for example, charged under s59: assault occasioning actual bodily harm.
17 Consistently with the view of the Tribunal in Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs 19-22, and more recently Nasr -v- Commissioner of Police [2000] NSWADT 138 at paragraph 35, I do not look behind the prescribed offence to the particular circumstances. On that basis alone, Mr Skara has not been convicted of an offence occasioning violence as prescribed by cl.5, and his licence cannot be revoked on that ground.

18 Even if I were to look behind the prescribed offence, the facts relied on by the Commissioner, which formed the basis of the convictions in the criminal proceedings, do not show that Mr Skara inflicted or attempted to inflict actual bodily harm.

19 The fact sheet in the criminal proceeding states that Mr Skara drove his car “towards” the officer, stopped “about 1 metre from her” and spat “towards” the officer. Mr Skara pleaded guilty to these facts. Before me he denied having spat at all.

20 As to driving the car towards the officer, and stopping about 1 metre from her, I accept Mr Skara’s uncontested explanation of these facts as stated: he drove along the street to a point beside and a metre from the parking officer who was on the footpath. As to spitting, I need not decide whether Mr Skara spat or not because, if I have to look behind the occurrence of the offence at all, the spitting, if it did occur, was not in my view an assault inflicting or attempting to inflict actual bodily harm.

21 The fact sheet states that the officer “was not physically injured in the assault but was very upset by the defendant’s language and actions”. On the basis that I must look behind the occurrence of the offence, the Commissioner submitted that “actual physical harm” need not be harm to the person. Relying on the case of R v Miller [1954]2 AllER 529, the Commissioner submitted that “an injury to the state of mind . . . is within the definition of “actual bodily harm”" (R v Miller at p534). The “injury to the state of mind” in that case was shock, an “hysterical and nervous condition”. These days it would be perhaps be described as nervous shock, or Post Traumatic Stress Disorder. In any event, if “actual physical harm” need not be harm to the person, and I am not sure that that is the case, the statement in the fact sheet that the parking officer was “very upset by the defendant’s language and actions” falls well short of establishing the necessary degree of seriousness of the non-physical harm indicated in R v Miller.

Fit and proper

22 The Commissioner submits under s24(2)(c) that Mr Skara is no longer a fit and proper person to hold his licence. I disagree.

23 The Commissioner concedes that Mr Skara is a person of good repute, and is highly regarded in his community. I note the testimonials which were admitted as Exhibit 3.

24 In challenging Mr Skara’s fitness and propriety to hold a licence, however, the Commissioner relies substantially on the fact that Mr Skara has two convictions.

25 While Mr Skara’s criminal record is relevant to the question of whether he is a fit and proper person to hold a licence, this Tribunal has said repeatedly, and on authority, that a conviction in itself will not ordinarily be enough for the Tribunal make an adverse finding on fitness and propriety (see eg Toleafoa (No 2) v Commissioner of Police [2000] NSWADT 48 and references there to Sobey v Commercial Private Agents Board (1979) 22 SASR 40 at 75 and Ziems v The Prothonotary of The Supreme Court of New South Wales (1957) 97 CLR at 302). It is the person’s conduct, not the fact of a conviction which is to be considered.

26 Mr Skara has no recorded convictions apart from the two connected with this matter. Mr Skara admits that the conduct giving rise to those convictions indicates that, in the circumstances, he was rude and he showed a lack of personal control. In my view his conduct shows a capacity, in such circumstances, for more than mere rudeness, but for offensiveness and for disrespect of a person performing her duties.

27 The Commissioner submitted that an inference should be drawn against Mr Skara from his conduct, to the effect that he is a person who lacks self-discipline such that he is to a fit and proper to hold a licence.

28 It is relevant to note Mr Skara’s uncontested account of the circumstances of the incident. Mr Skara was 5 minutes over the one hour parking time limit. He had been kept waiting in a doctor’s surgery longer than anticipated, to have a piece of metal removed from his eye, and was due back at work. He was in some pain. Exhibit 6 is a statement from the doctor confirming Mr Skara’s attendance, and the delay in his being treated.

29 In evidence before me Mr Skara said that he regretted the event, and that if he was in the same position again he would not act in the same way: he would accept what had happened and leave. This attitude on his part was not questioned in cross-examination, and I note that Mr Skara is a person of acknowledged good character. I am satisfied that he is unlikely to behave in such a manner again

30 This Tribunal consistently refers to Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 when explaining its approach to assessing whether a person is ‘fit and proper’. Regard is to be had to “the nature of the activities”, and a finding is made as to whether a person is “fit and proper to undertake the activities in question”.

31 The activities for which Mr Skara’s fitness and propriety are being assessed are target shooting, and recreational hunting/vermin control. I am unable to draw the inference against Mr Skara that the Commissioner says is warranted by his conduct. In my opinion his conduct in the circumstances, though reprehensible, does not reasonably support an inference that he is no longer a fit and proper person to hold a licence.

32 I form this view having in mind the range of considerations set out in by Toohey and Gaudron JJ in Australian Broadcasting Tribunal -v- Bond at page 56. I take account of the purposes for which Mr Skara is licensed to use firearms, the circumstances in which Mr Skara has access to and uses firearms, the absence of any other recorded convictions, Mr Skara’s good character, the circumstances in which his conduct occurred, his regret for his conduct, and his stated resolve not to act in that way in the future.

Public interest

33 The Commissioner argues under s24(2)(d) and cl.17(1) that it is not in the public interest for Mr Skara to continue to hold his licence. I disagree.

34 Consideration of the public interest arises frequently in the Tribunal. The relevant authorities were reviewed recently by the Tribunal in Howells -v- Commissioner of Police [2000] NSWADT 120, citing O'Sullivan v Farrer (1989) 168 CL.R 210; Re Queensland Electricity Commission and Ors Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1; and Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131. I agree with the Commissioner’s submission in this matter that the interests of the whole community are to be considered when deciding whether a person should to continue to hold a licence.

35 I am mindful of the principles behind and the objects of the Firearms Act. The Commissioner appropriately drew my attention to the second reading speech of the then Attorney General on 25 June 1996, and the reference there to the public’s right to safety being put before a person’s right to use a gun.

36 In relation to the public interest, the Commissioner relied on no more than the same factors that went to the questions of fitness and propriety.

37 For the same reasons as I gave relating to my view that Mr Skara continues to a be a fit and proper person to hold a licence, I do not think that the public interest in a high level of safety is at all compromised by Mr Skara continuing to hold a licence.

Decision

38 Having regard to the relevant factual material and the applicable law, I have decided that the correct and preferable decision is that there are no grounds in the Firearms Act or Firearms (General) Regulation that warrant the revocation of Mr Skara’s licence.

Order

39 Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act I set aside the Commissioner’s decision to revoke Mr Skara’s licence, and I substitute for that decision a decision not to revoke his licence.

40 Pursuant to s88(1) I make no award of costs.

41 I direct that Exhibits numbered 1 to 6 inclusive be returned to Mr Skara.