Slavicek v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 106

CITATION:	Slavicek v Commissioner of Police, New South Wales Police Service [2003] NSWADT 106
DIVISION:	General Division
PARTIES:	APPLICANT Karel Slaavicek RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023197
HEARING DATES:	31/01/2003
SUBMISSIONS CLOSED:	01/31/2003
DATE OF DECISION:	05/19/2003
BEFORE:	Higgins 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:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Whiteman v Commissioner, New South Wales Police Service [2002] NSWADT 179 Police v Toleafoa [1999] NSWADTAP 9 O'Sullivan v Farrar (1989) 168 CLR 210
REPRESENTATION:	APPLICANT M McAuley, barrister RESPONDENT C Capper, solicitor
ORDERS:	1 The decision of the Commissioner to revoke Mr Slavicek's licence is affirmed.

1 On 2 September 2002, Mr Slavicek lodged an application with the Tribunal for review of a decision, made by a delegate of the Commissioner of Police (“the Commissioner”), to revoke his category AB firearms licence. The Tribunal’s jurisdiction to hear this application arises pursuant to s.75(1)(c) of the Firearms Act, 1996 (“the Firearms Act”) and s.38 of the Administrative Decisions Tribunal Act, 1997 (“the ADT Act”).

2 The factual basis on which the Commissioner revoked Mr Slavicek’s licence related to the circumstances surrounding a finding of guilt against Mr Slavicek by the Ryde Local Court, on 18 April 2002, of an offence of failing to ensure that a firearm was safely kept contrary to s. 39(1)(a) of the Firearms Act. In light of this factual basis the Commissioner relied on the following provisions of the Firearms Act to revoke Mr Slavicek’s licence:

a) s. 24(2)(a) – a requirement for which a licence would be refused;
b) s. 24(2)(b)(ii) - contravention of a provision of the Act; and
c) s. 24(2)(d) and cl. 17 of the Firearms (General) Regulation 1997 (‘the Regulations’) – public interest.

3 The issue for determination by the Tribunal is whether the Commissioner’s decision was the correct and preferred decision having regard to the relevant facts and any written or unwritten law: s. 63(1) ADT Act.

RELEVANT LAW

4 The Firearms Act sets out a scheme for licensing people to possess and use firearms. The principles and objectives of the Act are set out in s.3. So far as is relevant this section provides as follows:

“(3) Principles and objectives 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
…………”

5 Section 24 sets out the circumstances in which the Commissioner can revoke a licence. That section so far as is relevant provides as follows:

“ 24 Revocation of licence

(1) …
(2) a licence may be revoked:
a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
b) if the licensee:

i)….
ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
iii) contravenes any condition of the licence, or
c) ….
d) for any other reason prescribed by the regulations”.

Safe Storage

6 Section 11 of the Firearms Act sets out general restrictions for which the Commissioner either must or may refuse the issue of a licence. Section 11(3)(c) of the Act provides that a licence must not be issued unless “the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant”. Section 40 of the Act, which is contained in Part 4, sets out the requirements for the safe keeping of a firearm to which a category AB licence applies when the firearm is not actually being used or carried. That section, so far as is relevant, provides as follows:

“ 40 Category A and Category B licence requirements

(1) The holder of a Category A or Category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

c) the locks of such a receptacle must of solid metal and be of a type approved by the Commissioner,

d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, and

e) such other requirements relating to security and safe storage as may be prescribed by the regulations”.

7 A failure to comply with the abovementioned safe keeping requirements constitutes an offence, which is punishable by a fine and a maximum term of imprisonment for twelve months or both. Sub-s.40(2) of the Firearms Act provides that a licensee does not have to comply with the requirements of the section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.

Contravention of the Firearms Act

8 Section 39(1)(a) of the Firearms Act provides that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping. A person who contravenes the requirement contained in this section commits an offence, which is punishable by a fine and or a maximum period of imprisonment of 2 years.

Public Interest

9 Clause 17 of the Firearms (General) Regulations, 1997 prescribes the following in respect of s.24(2)(d) of the Firearms Act:

“A licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it”.

10 The following documents were tendered into evidence:

· The Police brief of evidence in respect of the charge that had been laid against Mr Slavicek and that was dealt with by the Ryde Local Court on 18 April 2002.

· A statement of facts prepared by Mr Slavicek, which had attached to it photographs which depicted a storage cabinet that was bolted to the wall in a room at his home.

· A handbook of Firearms Safety Awareness published by the NSW Government on behalf of the Commissioner.

11 The abovementioned documents were all tendered into evidence without any objection. No oral evidence was given.

12 The abovementioned documents disclose the following factual circumstances surrounding the charge that was laid against Mr Slavicek:

(a) Mr Slavicek became a member of the Sporting Shooter’s Association of Australia Inc in July 2000. In the same year he passed his Firearm Safety Awareness Test and applied for his firearms licence. He was issued with that licence in October 2000 and after being issued with the licence imported an air rile through a recognised and licensed firearms dealer.

(b) Mr Slavicek was aware of the safety storage requirements in the Firearms Act and sought the dealer’s advice on where to purchase the required storage container. The dealer recommended a place and Mr Slavicek purchased a steel cabinet from that place. It was his understanding that the cabinet he purchased complied with the requirements of the Firearms Act.

(c) Soon after Mr Slavicek acquired his air rifle he took it to the Snowy Mountains and left it at the rural property of a friend. His friend stored the air rifle in one of the two safes he had installed to store his own firearms.

(d) During the latter part of 2000 and up to October 2001, Mr Slavicek visited his friend on several occasions and used his air rifle to assist his friend in keeping down small vermin (e.g. rabbits) on his land.

(e) Several days before 14 October 2001, Mr Slavicek brought his air rifle back to Sydney so that he could take part in the Sporting Shooter’s Association obligatory yearly target practice. When he arrived home he discovered that he had installed his steel cabinet in a difficult place and decided to move it to a better location. This meant that he could not use the cabinet to store his air rifle. So he decided to lock the air rifle, in an unoccupied self contained flat underneath his home. He hid the air rifle behind the fridge in the flat’s kitchenette. At all times the air rifle had a trigger lock attached to it, which locked its trigger mechanism and prevented it from being used. At all times the flat was locked with the key being retained by Mr Slavicek.

(f) On 14 October 2001, just before 8 o’clock in the evening, Mr Slavicek received a visit from two police officers. One of the police officers stated that a neighbour had seen Mr Slavicek’s son, Martin, with a gun on the verandah of his home shooting down a cockatoo.

The police officer asked Mr Slavicek whether he had any such gun to which Mr Slavicek responded ‘yes’ and produced a copy of his licence and explained the circumstances in which he had brought the air rifle back to Sydney from his friend’s property. When the police officer requested whether he could inspect the air rifle, Mr Slavicek took the police officers around the house, to the front door, of the downstairs self contained flat. He removed the key from his waistcoat pocket and unlocked the flat’s door. He then retrieved the air rifle from behind the fridge. The police officers also located some ammunition in the kitchenette.

(g) The police officer then asked Mr Slavicek where he normally stored his air rifle. Mr Slavicek led the police officers to the side of the house to a low door of a storage room. Again Mr Slavicek took a key from his waistcoat pocket and unlocked the padlock to this low door. The police officer asked Mr Slavicek whether the cabinet was fixed to the floor, to which Mr Slavicek responded “no, there is no floor”. The police officer informed Mr Slavicek that the cabinet did not comply with the requirements of the Act and went on to inspect the backyard and conduct enquiries in respect of the allegedly shot cockatoo.

(h) Mr Slavicek states that the metal storage cabinet he had purchased was built of steel, which had its door secured by a “three pin” metal lock that fixed the door in the middle as well as at the top and bottom of the cabinet. He also states that following the visit of the police on 14 October 2001 he has had the storage cabinet fixed, by means of six 10mm diameter steel galvanised expansion bolts, through the back of the cabinet to the brick footing wall behind the cabinet and through the side of the cabinet to the timber floor bearer and the brick footing wall.

(i) Mr Slavicek was charged on 29 October 2001 with an offence of not keeping a firearm safely contrary to s.39 of the Firearms Act. On 18 April 2002, the Ryde Local Court found Mr Slavicek guilty of the offence but entered no conviction pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999.

13 Mr McAuley, on behalf of Mr Slavicek, conceded that the term “public interest” as contained in cl. 17 of the Regulations primarily involved issues of public safety. In this case, he submitted the evidence demonstrated that Mr Slavicek’s air rifle was at all times stored in a manner which posed no threat to public safety. He pointed to the fact that the air rifle was hidden behind the fridge in the kitchenette of an unused flat under Mr Slavicek’s home. The flat was locked and Mr Slavicek was the only person who had a key to the room.

14 Mr McAuley conceded that at the relevant time the air rifle was not stored in accordance with the requirements of s.40 of the Firearms Act. He submitted that Mr Slavicek’s failure to comply with that section was for a relatively short period of time and his reasons for not storing it as required had been accepted by the Commissioner. That is, he had the requisite storage cabinet but had failed to fix it to the floor as required under the Act. Mr Slavicek had now rectified this particular inadequacy and in light of all these factors, the Commissioner’s decision was not the correct and preferred decision and should be set aside.

SUBMISSIONS BY THE RESPONDENT

15 Mr Capper on behalf of the Commissioner submitted that in order for Mr Slavicek to succeed in his application he must demonstrate that there are exceptional reasons why his licence should be restored having regard to the strict safe keeping provisions contained in s.40 of the Firearms Act (Phegan v Commissioner of Police [2002] NSWADT 127). In his submission there was no evidence before the Tribunal, which demonstrated such exceptional reasons. The fact that the firearm was stored behind a locked door, was not sufficient to comply with s.40 of the Act.

16 Mr Capper also submitted that the storage cabinet purchased by Mr Slavicek looked like a school locker which in his opinion was easily penetrable and did not comply with the requirements set down by the Commissioner.

REASONS AND DECISION

17 As mentioned above, the Commissioner relied on the grounds set out in ss. 24(2)(a), (b)(ii) and (d) of the Firearms Act in revoking Mr Slavicek’s licence. The same grounds were pressed at the hearing before the Tribunal.

18 Each of the grounds relied on are discretionary grounds. That is, the Commissioner is given a discretion as to whether he should or should not revoke a licence where the circumstances specified in those provisions have arisen. However, the provisions in 24(2) of the Firearms Act do not give any guidance as to how that discretion should be exercised in each individual case. The Deputy President has stated in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at para 23 that “the discretion should be exercised in a way which promotes the principals and objects of the Firearms Act” (see also Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28).

19 As mentioned above, those principles are that the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety (s.3(1) of the Firearms Act). Included in the objects of the Act is the need to store and convey firearms in a safe and secure manner.

20 The facts in this case are not disputed. However, the Tribunal notes that the police brief contains absolutely no evidence, which would link Mr Slavicek’s air rifle with the dead cockatoo that was found in the otto bin at Mr Slavicek’s home. This aspect of the evidence was not relied on by the Commissioner nor was the complaint, which resulted in the police attending Mr Slavicek’s home. Accordingly, the Tribunal has had no regard to these particular matters.

Safe Storage – s. 24(2)(a) and 11(3)(c)

21 There is no dispute that on 14 October 2001, Mr Slavicek had failed to store his air rifle in accordance with s. 40 of the Firearms Act as he was required to do. However, it is Mr Slavicek’s submission that notwithstanding this the Commissioner can nevertheless be satisfied that he is capable of meeting those storage requirements. Firstly, he submits that he has at all times had a cabinet which met the “locked receptacle’ requirement of s. 40 and that he has now “fixed it” so that it could not be removed, as required under that section.

22 In my opinion the question of whether Mr Slavicek’s cabinet as a matter of fact now meets the requirements of s. 40 of the Firearms Act is at best a secondary issue. The main issue is the fact that Mr Slavicek has failed to store his air rifle in accordance with s. 40 of the Act. If Mr Slavicek were to apply for a firearms licence, this fact alone would be sufficient to require the Commissioner to refuse an application under s. 11(3)(c) of the Act.

23 While, Mr Slavicek is not applying for a firearms licence, s. 24(2)(a) of the Firearms Act gives the Commissioner a discretion to revoke his licence in circumstances where he would be required to refuse an application for a licence. As mentioned above, this discretion must be exercised by balancing the particular circumstances of each case against the over-riding principles and objectives of the Act. In this regard the following matters concerning the particular circumstances of each case are relevant:

a) the nature and seriousness of Mr Slavicek’s conduct, which gave rise to the Commissioner’s decision to revoke his firearms licence (“the improper conduct”);
b) Mr Slavicek’s explanation of the circumstances giving rise to the improper conduct;
c) the consequences, if any, for Mr Slavicek if the licence is revoked; and
d) the likelihood of Mr Slavicek repeating the improper conduct in the future.

24 In this case, Mr Slavicek’s conduct was serious in that he breached a fundamental requirement of the Act. The fact that the air rifle was locked in an unused flat does not diminish the existence of a risk to the public. Nor does the fact that the air rifle had a trigger lock attached to it. A firearm, which comes into the possession of an unlicensed person can nevertheless be used to threaten or intimidate members of the public. Risk to the public is only diminished if the requirements of the Firearms Act are complied with.

25 Furthermore, Mr Slavicek was fully aware of the storage requirements contained in the Act and he deliberately brought his air rifle back to Sydney knowing that he would be storing it in a manner that was contrary to that which was required. Had the police not attended his home on 14 October 2001, the air rifle would undoubtedly have been stored in the flat for some considerable period of time. His disregard for what was required is also demonstrated by the fact that the ammunition was found with the air rifle. That is, it was not separately stored as required under s. 40(1)(d) of the Firearms Act.

26 The Tribunal has not received any specific evidence on the consequences, if any, on Mr Slavicek if his licence is revoked. From the material that is in evidence it would appear that his reasons for having a licence include sport/target shooting and recreational hunting. A revocation of his licence will mean that he will no longer be able to perform these activities. However, as the principles of the Firearms Act make clear, the issue of a licence is a privilege, which is conditional on the over-riding need to ensure public safety (s. 3(1)(a)). In this case Mr Slavicek’s conduct has compromised public safety.

27 In relation to the question of whether Mr Slavicek is likely to engage in improper conduct in the future, the Tribunal notes the steps taken by Mr Slavicek to provide for the safe storage of his firearms. In this regard, it is noted that Mr Slavicek only took steps in this regard after the police had visited his home. They should have been taken prior thereto. In light of all the evidence before the Tribunal, I am not satisfied that Mr Slavicek has fully understood the seriousness of his contravention and the importance that Parliament has placed on ensuring public safety.

28 The evidence in relation to whether the cabinet met the requirements of section 40 of the Firearms Act, was far from adequate. Mr Slavicek asserted that it was made of steele and that it contained the requisite lock. Mr Capper on the other hand asserted that the cabinet did not appear to be made of steele and appeared to be easily penetrable. Furthermore, he asserted that it was not of a type approved by the Commissioner (s. 40(1)(a) and(c) Firearms Act). Yet Mr Capper was not able to identify what types of receptacles had been approved by the Commissioner.

29 The Tribunal has no expertise in this area and the only evidence to support Mr Slavicek’s assertion was a photo of the cabinet and a handbook on “Firearms Safety Awareness” published by the Commissioner. The photo and the handbook were not sufficient for the Tribunal to make any findings in regard to s. 40 of the Act. While this was at best a secondary issue, the Tribunal is concerned that licence holders and potential licence holders be made aware of what type of receptacles etc. that are approved by the Commissioner. Such information should be contained in a document that is readily available, so that persons such as Mr Slavicek can have no doubt that they are purchasing a storage container that meets the Commissioner’s approval.

Contravention of the Act – s. 24(2)(b)(ii)

30 Considerations similar to those raised above arise under s. 24(2)(b)(ii) of the Firearms Act. The only difference is that the fact of the finding of guilt against Mr Slavicek’s in respect of an offence under s. 39(1)(a) of the Firearms Act is sufficient to bring that section into operation. As this has been satisfied in this case, the matters to which the Commissioner is to have regard in the exercise of his discretion are the same.

Public Interest – s. 24(2)(d)

31 The Commissioner relies on the abovementioned contravention as the basis on which it is not in the public interest for Mr Slavicek to be the holder of a licence.

32 The concept of “public interest” has been considered by this Tribunal in several decisions (e.g. Whiteman v Commissioner, New South Wales Police Service [2002] NSW ADT 179: Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 and Police v Toleafoa [1999] NSW ADT AP 9). In Toleafoa the Appeal Panel stated at [25] that the public interest is:

“…an inherently broad concept giving the Appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual as the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.”

33 The phrase ‘in the public interest’ was considered by the High Court in O’Sullivan v Farrar (1989) 168 CLR 210. In a joint judgment Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216:

“… the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and scope and purpose of the statutory enactments may enable… ”

34 In Ward, the Deputy President held that the ‘public interest’ in relation to the holding of a firearms licence related to the objects and principles set out in s.3 of the Firearms Act. This means that Mr Slavicek’s conduct must again be considered in the light of the over-riding public interest of public safety.

35 Consequently, a decision to revoke a licence under s. 24(2)(d) of the Firearms Act and cl. 17 of the Regulations involves consideration of the same matters that are addressed above under the other two grounds relied on by the Commissioner. And as stated above, in the opinion of the Tribunal Mr Slavicek’s conduct involved a fundamental breach of the safe storage requirements of the Firearms Act, which compromised public safety.

36 For the reasons stated above, the Tribunal is of the opinion that the Commissioner’s decision pursuant ss. 24(2)(a), (b)(ii) and/or (d) of the Firearms Act to revoke Mr Slavicek’s firearms licence is the correct and preferred decision.

37 The Tribunal orders that the Commissioner’s decision to revoke Mr Slavicek’s category AB firearms licence is affirmed.