Smith v Commissioner of Police, NSW Police

[2006] NSWADT 348

CITATION:	Smith v Commissioner of Police, NSW Police [2006] NSWADT 348
DIVISION:	General Division
PARTIES:	APPLICANT Adam Troy Smith RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063014
HEARING DATES:	24/07/06
SUBMISSIONS CLOSED:	08/08/2006
DATE OF DECISION:	12/07/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	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 Firearms (General) Regulation 1997 Firearms Act 1989
CASES CITED:	Bevan v Commissioner of Police [2004] NSWADT 1 Coates v Commissioner of Police [2001] NSWADT 56 Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
REPRESENTATION:	APPLICANT D Clifton, Solicitor RESPONDENT W Pisani, Agent
ORDERS:	The decision of the Commissioner of Police, New South Wales Police to revoke Mr Smith's firearms licence and permit is set aside.

REASONS FOR DECISION

Background

1 Mr Smith has held a Category AB firearm licence under the Firearms Act 1996 (“the Act”) since 1998. He held a licence or permit for many years prior to that date. His licence was suspended in October and was subsequently revoked. The decision to revoke the licence is the basis of these proceedings.

2 Mr Smith is also the nominated licence holder for a permit issued to Norco Co-op Ltd, to authorise the purchase and sale of ammunition through the Norco store at Deepwater (“the Deepwater store”). That permit was also revoked and the decision to revoke the permit is also subject to this review.

3 The revocations followed a domestic dispute that occurred between Mr Smith, his partner, Ms Vanessa Barrett (“Vanessa”) and his cousin, Justin Smith (“Justin”), which occurred on 14 September 2004. The facts in relation to that incident are not generally in dispute. A witness informed the police that they had heard Mr Smith make threats towards his partner during the course of the incident. That incident resulted in police applying for two interim Apprehended Violence Orders and the seizure of a total of twelve firearms registered to Mr Smith.

4 It is also common ground that transactions for the purchase of ammunition through the Deepwater store continued after the permit was revoked.

5 The Commissioner’s delegate based the revocation on the view that Mr Smith had contravened important provisions of the Act, that he did not have the ability to safely store firearms and ensure that only authorised persons gain access to the firearms and ammunition and therefore it is not in the public interest for Mr Smith to hold the licence or the permit.

Mr Smith’s case

6 Mr Smith relies on his own evidence and that of his father and Vanessa. He does not dispute that he was involved in a domestic dispute with Justin and Vanessa in September 2004 or that he was subject to AVOs following that incident. He contends that the AVOs were taken out by Senior Constable David Abercrombie and were not at the request of either Vanessa or Justin. He says that at the earliest opportunity Vanessa advised the Local Court Magistrate that she did not want to continue with the AVO. Justin initially did not request that the order be lifted but subsequently did so after he entered an undertaking with Mr Smith.

7 In December 2004 Mr Smith was advised that his licence had been re-instated however a short time later he was informed that it was again suspended. The suspension was on the basis of a report from Senior Constable Abercrombie. This report refers to threats said to have been made by Mr Smith to use a firearm against Vanessa and their children. Mr Michael Barrett, Vanessa's brother, had given a statement to Police in which he recounted that Mr Smith had made that threat.

8 Mr Smith asserted that there was animosity between himself and Mr Barrett and that this would have explained Mr Barrett’s statement. Mr Barrett did not give evidence in these proceedings. Mr Abercrombie stated that Mr Barrett was not contacted about the hearing because he was undergoing treatment for cancer. However when Mr Abercrombie’s assertion was challenged, he conceded that his information must have been incorrect.

9 Justin was not called to give evidence. The Commissioner’s explanation for his absence, that he was working out of the area, was also disputed. Mr Smith stated that Justin was living in the area and could have been called.

10 Mr Smith also asserted that there was a somewhat overzealous pursuit of him by the police. He clearly made his displeasure well known to police, which further exacerbated the relationship. He said that Mr Abercrombie and Justin were close friends and that he had been told that Mr Abercrombie had said that he was going to make sure that Mr Smith never gets his licence back.

11 Written submissions filed by Mr Smith’s solicitor, Mr Clifton, provide a reasonable summary of the evidence presented on his behalf. He concedes that police had collected the ammunition stock at the Deepwater store on 10 November 2004, at the time of the withdrawal of Mr Smith’s permit to sell. However, he asserted that the ammunition, which was stored in Mr Smith’s gun cabinet at his home at the time his firearms were seized, remains in his possession. He says that the ammunition was clearly visible to police at the time. The rifle bolts that were kept separate from the rifles, also still remain in Mr Smith's possession.

12 The allegation that Mr Smith failed to keep safe his firearms relates to the fact that police were unable to locate one of his firearms at the time his firearms were seized and that Mr Barrett had located it unattended in Mr Smith's bedroom and had taken it to police, and the assertion that the keys to Mr Smith's gun cabinet were able to be accessed readily.

13 Mr Clifton submits that Magistrate McCosker rejected the police evidence that Mr Smith failed to keep safe his firearms, when the matter came before the Glen Innes Local Court in April 2005. Mr Trevor Smith, Mr Smith's father, provided an uncontested explanation of the circumstances that lead to Mr Barrett locating the firearm.

14 Mr Trevor Smith told the Tribunal that it was he who had left the remaining rifle unattended in the bedroom on the understanding it was to be collected by police or that Mr Barrett was to take it to police, which was ultimately what in fact happened.

15 Mr Clifton also submits that the Glen Innes Local Court did not accept the evidence that the keys to the gun cabinet could be accessed readily. Police were unable to find the keys on the night of the incident as Mr Smith had the main keys in his possession at the police station. Mr Trevor Smith gave evidence that the keys to the second gun cabinet containing the last rifle were extremely difficult to locate. Vanessa provided evidence that Mr Smith was meticulous with the safe keeping of his firearm collection and that the presence of the firearms gave Ms Barrett no concerns at any time. This evidence was also uncontested.

16 Vanessa also gave evidence that she had not requested police to obtain an AVO on her behalf, despite the evidence of police, and that she at no time held fears for her or her childrens' safety. Further, her evidence is that Mr Smith had never been violent towards her or her children during their relationship.

17 Mr Trevor Smith stated in regard to Mr Smith’s behaviour on the night of 14 September 2004:

“I believe the incident with Justin Smith was out of character to Adam. I have never known him to be violent towards anyone, or heard of him being violent. If he "blows his stack" he is never violent, it is only words. I believe he was under extreme provocation when he struck Justin Smith. This is probably the most extreme provocation anyone would be expected to accept.”
18 Mr Barrett did not give evidence before either the Local Court or the Tribunal. Therefore his evidence that he heard Mr Smith make threats against his family was never tested. Mr Smith indicated that whilst he did not recall making such comment, he did not deny that in the heat of the moment he may well have made such a statement. Mr Clifton submits that if the threats were made it was in circumstances that were extremely emotionally charged and when Mr Smith felt that his family life was disintegrating.

19 Mr Smith was cross-examined in regard to the sale of ammunition after his permit had been revoked. He acknowledged that sales of ammunition had taken place through the Deepwater store after the withdrawal of his permit. These sales were arranged through the Norco store at Tenterfield in order to continue to provide a service to the Deepwater store’s clients. He agreed that while he had told the staff that they could not make further ammunition sales, he had not checked the store records to ascertain the extent of the sales. Mr Clifton submits that the police evidence shows that Mr Smith was involved in only one transaction and that he was surprised at the transaction generated by one of the staff members. Mr Smith conceded that the sales that took place after the suspension of the permit should not have occurred. No further sales did occur after police approached him about the sales in February 2005.

Mr Smith’s submissions

20 Mr Smith contends that little weight should be given to the issue of the alleged failure to safely store his firearms. He says that the allegation relies on the premise that the information given to the police was accurate and on evidence that was rejected in the Local Court. He submits that the evidence before the Tribunal does not support the Commissioner’s position.

21 It was submitted that there is a significant difference between the abuse of a firearms licence and that of a permit for the purchase and sale of ammunition. The abuse of a firearms licence can directly endanger life where the sale of ammunition is a secondary step to firearm abuse, given that the sales person is not directly involved in the discharge of a firearm.

22 Mr Smith acknowledged that his actions on 14 September 2004 jeopardised his licence and subsequently his permit. He said that he has learnt some very valuable lessons from the incident and the subsequent consequences. The defence of the charges and his attempt to have the licence and permit reinstated have to date cost Mr Smith in excess of $13,000. He submits that this is itself a significant penalty. It is further submitted that the likelihood of Mr Smith re-offending is negligible given the lengths to which he has gone in order to regain his licence and permit. Accordingly, his licence and permit should be reinstated.

The Commissioner’s case

23 The Commissioner relies on the following statements filed in these proceedings:

Statement of Justin Smith dated 21/9/04;

Statement of Michael Barrett dated 24/11/04;

Statement of Michael Barrett dated 21/9/04;

Statement of Senior Constable David Fleming dated 26/2/04;

Statement of Constable Kelvin Jubb dated 4/10/04;

Statement of Allen Cattell dated 24/2/04; and

Statement of Justin Newsome dated 24/2/04.

24 None of the authors of these statements appeared at the hearing and therefore their evidence is untested.

25 Justin’s statement recounts events leading to the incident on the night of 14 September 2004 and what transpired on that night.

26 Mr Barrett provided an account of his involvement in the incident on the night of 14 September 2004. He recounted conversations with Vanessa and conversations between Vanessa and Mr Smith. He also expressed frustration about Vanessa’s stormy relationship with Mr Smith. He said that Vanessa was very upset and had told him that she was scared that Mr Smith would hurt her. He said that he heard Mr Smith say to Vanessa, words to the effect of:

"I am going to line the kids up and shoot them, and then shoot you"
27 Mr Barrett said that he went to Mr Smith house with two Police officers to get Mr Smith’s guns. He said that Mr Smith’s friend, Doug Cox, had told him that the keys to Mr Smith’s gun safe were in the freezer but that he was not able find them. He showed the police the gun safe and tried turning the handle on the safe but it was locked. One of the police officers had a locker key that he used to open the safe and removed the guns from the safe. He noticed that there was a rifle missing. He then had a quick look around the house but could not locate the gun. Later that night he returned to the house and found Trevor Smith was there. He found the rifle leaning against the wall next to the cupboard in Mr Smith’s bedroom. He said that the rifle was in clear sight but he did not know how it had come to be there. He drove to Glen Innes and handed the gun to the Glen Innes Police.

28 Senior Constable Fleming and Constable Jubb each gave an account of attending Mr Smith’s house to seize Mr Smith’s firearms. They each gave a similar account to that provided by Mr Barrett.

29 Constable Jubb also recounted a telephone conversation that he had with Mr Smith on the morning of Friday 17 September2004. He said that Mr Smith had become aggressive and abusive towards him over the phone.

30 Allen Cattell and Justin Newsome each gave accounts of purchases of ammunition from the Deepwater store. In each case the purchases were made after Mr Smith’s permit had been revoked.

31 Senior Constable Abercrombie attended the hearing, gave evidence and was subjected to cross-examination.

32 Mr Abercrombie said that he sought an AVO on behalf of Vanessa because she had told him that she was scared of Mr Smith. He denied that he had a close friendship with Justin. He said that he knew Justin as a neighbour and got on well with him but did not socialise with him intentionally.

33 He also denied that he ever made statements to the effect that he was going to make sure that Mr Smith never gets his licence back. He said that he had become aware of other incidents involving Mr Smith from working in the town. He agreed that the knowledge was based on hearsay.

The Commissioner’s submissions

34 The Commissioner’s position is that the discretion to revoke a licence under section 24 of the Act must be exercised keeping in mind the nature of the conduct and the principles and objectives of the Act. One of the underlying principles of the Act is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety: Bevan v The Commissioner of Police [2004] NSWADT 1.

35 Mr Pisani submitted that the revocation was in the public interest based on Mr Smith’s conduct. It is therefore not relevant whether or not he was convicted of any offences. In Coates v Commissioner of Police [2001] NSWADT 56 the Tribunal held that the decision maker would be justified in refusing a licence if there is evidence sufficient to give rise to a finding that a licence holder may not personally exercise continuous and responsible control over firearms in the absence of convictions of a criminal offence or evidence that a firearm has been used irresponsibly or unsafely.

36 The ‘interest’ under consideration is the interest of the public as distinct from the interest of an individual or individuals. He argues that the community could not be confident that public safety would not be jeopardised should Mr Smith be given the privilege of holding a firearms licence.

37 It is common ground that sales occurred via the Deepwater store after Mr Smith’s permit had been suspended. Mr Pisani submitted that a course of conduct was implemented to circumvent the suspension. He arranged for ammunition to be sent from the Tenterfield store and for the customers to collect it from the Deepwater store. He said that Mr Smith dressed this up as a service to his customers but it does not conceal the fact that the transaction was conducted through the Deepwater store at a time when there was no permit in place to authorise the transaction.

38 Mr Pisani does not dispute Mr Smith’s evidence that he told his staff that they could not sell ammunition but he says that the sales continued anyway. Clearly what Mr Smith did was insufficient to prevent the sales. He also points to Mr Smith’s concession that he did not go through the Deepwater store records to discover how many sales had been conducted or who had conducted them.

39 Mr Smith is nominated as the permit holder for the Deepwater store. It is submitted that the permit only authorises the permit holder to conduct the activities prescribed within the permit. No other person employed at the Deepwater store is therefore authorised to sell or possess ammunition by virtue of this permit, as they are not listed upon it. It is further submitted that in order for an employee to physically deliver ammunition to a customer by virtue of a sale, they must have been in possession of the ammunition when the possession was not authorised.

40 Mr Pisani submitted that the fact that Mr Smith understood that it was permissible to make the sales if they were conducted through the Tenterfield store suggests that he does not understand the obligations of a permit holder as they relate to the purchase and sale of ammunition. He argues that it also reflects on the lack of seriousness with which Mr Smith viewed the suspension and that this in turn is relevant to the possibility of future breaches of the firearms legislation.

41 Mr Pisani submitted that a similar issue arises whether Mr Smith understood that it was permissible to make the sales through the Tenterfield store or whether he knew that the suspension prevented these sales and yet he still permitted them to take place. He says that the two scenarios are equally serious.

42 The Commissioner contends that this matter involves serious issues. The circumstances of this matter should be contrasted with those of the various authorities in which the breaches of the Act or regulations were seen as trivial or excusable, as distinct from fundamental. In situations where the breaches can be seen as trivial or excusable there is less likelihood of a risk to public safety: Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50. The Commissioner says that the Tribunal cannot be satisfied that Mr Smith would pose virtually no risk to public safety if he were given access to a firearm and therefore the decisions under review should be affirmed.

Findings and Decision

43 The Tribunal’s task is to determine whether the Commissioner’s decision is the correct and preferred decision having regard to the material before it including the relevant facts and the applicable law: section 63, Administrative Decisions Tribunal Act 1997.

44 I have considered all the material that has been provided by the parties. The ultimate issue is whether, having regard to all the relevant circumstances, the Commissioner was correct in exercising his discretion to revoke Mr Smith’s firearms licence and permit. There are a number of factors relevant to this matter. These include

(a) the public safety considerations;

(b) the extent of Mr Smith’s breaches of the legislation;

(c) Mr Smith’s knowledge of the relevant legislative requirements;

(d) Mr Smith’s conduct in relation to the sale of ammunition following the revocation of his licence and permit;

(e) Mr Smith’s commitment to never re-offending and the likelihood of future breaches of the legislation;

(f) Mr Smith’s practical needs for the licence and permit; and

(g) the period that has passed since the revocation and Mr Smith’s otherwise good character.

45 Responsibilities extended to licence and permit holders are of a serious nature and the holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. In the circumstances of this case the Commissioner contends that I could not be satisfied that Mr Smith has sufficient understanding and appreciation of the obligations of a licence or permit holder to be confident that he would comply with those obligations in the future. There are two main elements that underpin this submission: firstly, the safe storage issue; and secondly the sale of ammunition issue.

46 On the evidence before me I am not satisfied that the Commissioner’s allegations with respect to the storage of Mr Smith firearms are established. I accept that the Mr Smith had appropriate storage facilities for his firearms and that they were appropriately stored at the time they were seized. The evidence supports Mr Smith’s contention that Mr Smith had the main keys in his possession at the police station and the keys to the second gun cabinet containing the last rifle were extremely difficult to locate. I therefore make no negative finding against Mr Smith with respect to the storage of his firearms.

47 In the absence of either Justin or Mr Barrett little weight can be given to their statements. I note that both Mr Smith and Vanessa gave evidence that contradicts that given by Mr Barrett with respect to the strength of the relationship between Mr Smith and Vanessa. In the circumstances I accept their evidence. I am not satisfied that the relationship was one characterised by violence or that Vanessa is frightened of Mr Smith.

48 Mr Smith has conceded that ammunition was sold through the Deepwater store after the revocation of his permit. I agree with the Commissioner’s assertion that Mr Smith did not understand the obligations that attached to the holding of the permit. I note however that the sale of the ammunition was immediately stopped when police informed Mr Smith of the issue.

49 I am satisfied that Mr Smith now possesses the necessary understanding of the statutory obligations that are placed on a licence and permit holder. I accept that he has learnt from his experiences and that he has made a commitment to never re-offending.

50 It is not in dispute that Mr Smith’s position as Manager of the Deepwater Store, requires him to hold a firearms licence to be able to buy and sell ammunition. In my view the responsibilities attaching to that position and the consequences of the loss of the licence on his ability to perform the duties of that position are relevant factors in assessing the likelihood of future breaches of the legislation.

51 In my opinion, the Commissioner was correct in taking action against Mr Smith’s licence following the incident in September 2004. I make no negative comment about the actions of the police in that regard. Given the information that Mr Barrett had provided about threats that Mr Smith had made it would not have been prudent for the police to have acted in any other way. The Commissioner was also justified in taking action in relation to the sale of ammunition following the removal of Mr Smith’s permit. However, I need to decide the matter on the basis of the material before me and I have the benefit of information that was not available to the Commissioner at those times.

52 There is no evidence to suggest that Mr Smith has come to the attention of police before or after these incidents. There can be no doubt that the incident in September 2004 took place in circumstances of extreme provocation. I am satisfied that Mr Smith’s behaviour was out of character. Nevertheless I am satisfied that the circumstances of this matter are such as to warrant a suspension of Mr Smith’s licence and permit. I note that it is well over two years since the incident that gave rise to the initial suspension of Mr Smith’s licence and that effectively he has been without both the licence and permit for a period of about two years. In the circumstances I am satisfied that the public could now be comfortable with Mr Smith again holding a firearms licence.

53 On the totality of the evidence I am satisfied that there is minimal risk to the public should Mr Smith have his licence and permit reinstated. Accordingly, it is my view that the correct and preferable decision is that the decision under review be set aside.

Order

The decision of the Commissioner of Police, New South Wales Police to revoke Mr Smith's firearms licence and permit is set aside.