Uzelac v Commissioner of Police, Ministry of Police

[2003] NSWADT 226

CITATION:	Uzelac -v- Commissioner of Police, Ministry of Police [2003] NSWADT 226
DIVISION:	General Division
PARTIES:	APPLICANT Wayne Sylvester Uzelac RESPONDENT Commissioner of Police, Ministry of Police
FILE NUMBER:	033265; 033266; 033267
HEARING DATES:	30/09/2003
SUBMISSIONS CLOSED:	09/30/2003
DATE OF DECISION:	10/01/2003
BEFORE:	Hennessy N - Magistrate (Acting President)
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 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 McVerry -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 179 Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Thompson -v- Goold & Co [1910] AC 409 Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91
REPRESENTATION:	APPLICANT J Thompson, barrister RESPONDENT C Capper, advocate
ORDERS:	1. Publication of the matters contained in WSU1 and WSU 2 to Wayne Uzelac's affidavit sworn 16 September 2003 is prohibited except in relation to publication by the Commissioner or his legal representatives to those instructing him and to legal officers employed by the Commissioner.2. The decisions of the respondent to revoke the Category H firearms licences of Wayne Uzelac, Divisional Security (Aust) Pty Ltd and Cash & Valuables Pick-Up Services Pty Ltd are set aside

Introduction

1 Wayne Uzelac is the General Manager for Divisional Security (Aust) Pty Ltd and Cash and Valuables Logistics Pty Ltd (the companies). The companies carry out security work which requires their security guards to carry firearms. Mr Uzelac holds three Category H firearms licences, one in his own name and one in the name of each of the companies. Category H firearms licences are issued to people who require them for their business as long as they have a special need to use a pistol. On 23 September 2003, the Commissioner of Police (the Commissioner) revoked all three Category H firearms licences pursuant to the Firearms Act 1996 (the Act). The reasons for the revocations that were relied on by the Commissioner at the hearing were that:

· the licensee has contravened a provision of the Act or regulations - s 24(b)(ii) of the Act;

· the licensee has contravened a condition of the licence - s 24(2)(b)(iii) of the Act;

· it is not in the public interest for the licensee to continue to hold the licence; s 24(2)(d) and Clause 17 of the Firearms (General) Regulation 1997 (the Regulation).

2 Mr Uzelac applied to the Tribunal for a review of those decisions. Pursuant to s 63(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Tribunal must determine what the correct and preferable decision is based on any relevant factual material and any applicable written or unwritten law.

Background

3 On 10 September 2003 police officers with the Firearms and Regulated Industries Crime Squad, State Crime Command conducted a random audit of the companies’ premises in Parramatta Road, Silverwater. After inspecting the premises including the manner in which firearms were stored and the record keeping arrangements, the Commissioner’s delegate issued a Notice of Suspension which suspended all three licences indefinitely. Mr Uzelac applied to the Tribunal for a stay of the suspension but the application was dismissed on 16 September 2003 because the Tribunal has no jurisdiction to stay a suspension decision. On 17 September 2003 the Supreme Court granted orders staying the suspension. The Commissioner revoked the licences on 23 September 2003. It is those decisions that are being reviewed in these proceedings.

4 Although the Act requires that firearms and ammunition not be stored together, it is not in dispute that when police officers searched the premises on 10 September 2003 they found 16 firearms stored in a safe together with a large quantity of ammunition. The ammunition was in non-lockable drawers within the safe. In addition they found that a register kept by the companies had two missing entries. Police officers also found that the record of quarterly inspections of the firearms was held electronically rather than in a bound register.

Storage requirements

5 Under s 41(1)(c) of the Act, the holder of a category H licence must comply with a requirement that:

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 safe containing any such firearm

6 While Mr Uzelac did not dispute that the firearms and the ammunition were stored together in the safe he maintained that he was excused from compliance with s 41(1)(c) by virtue of s 41(2). That provision states that:

A licensee does not have to comply with the requirements of this 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.

7 Mr Uzelac stated that police officers had visited the premises from which the companies operated on three previous occasions, namely May 1999, May 2000 and February 2002. Lubo Raskovic, the Company Chairman for both companies, gave evidence that a random audit took place in May 1999 when the companies’ premises were at Port Botany. On that occasion police inspected the gun safe where firearms and ammunition were apparently stored together. In May 2000 after the companies had moved into premises at Carnarvon Street Silverwater, Mr Uzelac asked police from Auburn police station to organise an inspection. Again police officers were allegedly shown a safe in which firearms and ammunition were stored together. Following further expansion the companies moved to premises in Parramatta Road, Silverwater. In February 2002 police officers attended those premises and were shown the same safe that they inspected in September 2003. According to Mr Raskovic, he showed police officers the safe containing firearms and ammunition. No action was taken to prosecute the Mr Uzelac or to take disciplinary action in relation to the licences following these visits.

8 Mr Thompson, representing Mr Uzelac, submitted that these visits and the absence of any follow up action bring the circumstances of this case within the exception in s 41(2). Mr Capper, representing the Commissioner, submitted that the elements of s 41(2) had not been made out for two reasons. Firstly, the police officers who visited Mr Uzelac’s premises were not delegates of the Commissioner for the purposes of s 41(2). Secondly, in order to come within the exception the alternative arrangements must be “not less than” the requirements set out in s 41. In this case the storage of ammunition and firearms together was a lesser standard than that required by s 41(1)(c).

9 Evidence tendered by the Commissioner in relation to delegations makes it clear that the Manager of the Firearms Registry, the Manager, Services, Firearms Registry and the Manager, Review and Assessment, Firearms Registry are the people who have the authority to exercise certain functions of the Commissioner under the Act. The function under s 41(2) has not been delegated to police officers in general. Furthermore I agree with Mr Capper’s submission that in this case the storage of ammunition and firearms together was a lesser standard than that required by s 41(1)(c) and therefore s 41(2) is not applicable. Based on this reasoning and the undisputed facts, I am satisfied that Mr Uzelac has contravened s 41(1)(c) of the Act. Section 24(2)(b)(ii) of the Act provides that the Commissioner may revoke a licence if the licensee “contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.”

10 Similarly, Mr Uzelac has contravened a condition of the licence. That condition is that the licensee must comply with the relevant safe keeping and storage requirements under the Act. (See s 19(2)(a) of the Act.) Under s 24(2)(b)(iii) such a contravention is another ground for revoking a licence.

11 The Commissioner also relied on s 24(2)(d) which allows a licence to be revoked “for any other reason prescribed by the regulations.” Clause 17 of the regulations allows a licence to 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.”

Recording information in a register

12 When inspecting the premises, police officers found that the register of firearms was not kept in accordance with the requirements of Clause 67 of the Regulation. Section 67(1)(b) requires a person who employs security guards to keep, in the approved form:

(b) a register in which are kept particulars of the names of each employee who is authorised by a licence to possess a firearm, and of the periods for which each such employee has possession of the firearm.

13 Under Clause 67(3)(c) the employer must “ensure that an appropriate entry is made in the register referred to in subclause (1)(b) when any firearm (and any ammunition for the firearm) is transferred from the employer’s store of firearms to the custody of an employee and when the firearm and ammunition is returned to the store of firearms.” The Commissioner submitted that Mr Uzelac had not complied with s 67(1)(b) and s 67(3)(c) because a pistol was signed out to him on 21 August 2003 and again on 29 August 2003 without being signed back in on either occasion. There was no dispute that there was no record of the pistol being signed back in. However, the pistol was in the safe on 10 September when police conducted an inspection of the premises.

14 I am satisfied that Mr Uzelac was in breach of Clause 67 of the Regulation because of the absence of these entries in the register. Under s 24(2)(b)(ii) a licence may be revoked if the licensee “contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.”

Recording in electronic or hard copy form

15 The final matter identified by the police officers was that Mr Uzelac had not complied with Clause 67(1)(a) of the Regulation because a hard copy register was not kept in relation to the quarterly inspection of each firearm by some competent person. Clause 68(a) states that:

A person who employs security guards must:

(a) ensure that each firearm in respect of which each security guard holds a licence is inspected once every 3 months by some competent person to ascertain its working condition,

16 While it was not in dispute that the inspections as required by Clause 68(a), were carried out and recorded on a computer data base, the Commissioner submitted that Clause 67(1)(a) required Mr Uzelac to keep a hard copy register of inspections which complies with Clause 67(2). Section 67(1)(a) states that:

A person who employs security guards must keep in the approved form:

(a) a register in which are kept particulars of the acquisition of firearms by, the servicing of firearms on behalf of, and of the disposal of firearms and ammunition by, the employer,

17 Clause 67(2) lists the manner in which each register is to be maintained. The requirements include that the book be not less than 100 pages, that the heading of each page be machine printed, that the pages are bound to prevent any page being readily removed and that each page be numbered consecutively. These requirements are designed to ensure that the information is not changed after it has been recorded.

18 Clause 67(1)(a) refers to the keeping of a register in relation to the acquisition, servicing and disposal of firearms and ammunition. Clause 67(1)(a) does not refer to the inspection of firearms. Words can only be implied into legislation to give effect to the underlying purpose or object of the statute in very limited circumstances. In Thompson -v- Goold & Co [1910] AC 409 at 420 Lord Mersey said “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. ” In this case, there is no obvious gap in the legislation. The legislature has selected the kinds of information which should be contained in a hard copy register. Information relating to the quarterly inspection of firearms is not included. There is no basis for assuming that the omission of any reference to quarterly inspections in s 67(1)(a) was not deliberate. I accept Mr Thompson’s submission that if the legislature had intended that details of inspections be included in a register then it would have said so in s 67(1)(a). Mr Uzelac kept those records on a computer data base. Recording quarterly inspections on a data base, rather than a hard copy register, does not constitute a contravention of any provision of the Act or the regulations.

Legal Principles

19 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:

· while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]);

· the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:

· the reason for failing to store the firearm safely;

· the length of time the firearm was not stored safely;

· the potential or real danger posed by failure to store the firearm safely;

· the person's previous conduct in relation to storage of firearms and any related matter;

· the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

· the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])

· in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50

· the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].

Reasons and Decision

20 The Commissioner has a discretion to revoke a firearms licence where a licensee has contravened a condition of the licence, the Act or the regulations. In addition a licence may be revoked where it is not in the public interest for the licensee to continue to hold the licence. In this case the contravention consists of storing firearms and ammunition together and failing to record in the register, the fact that a firearm was returned. There are no other findings which are relevant to the question of public interest. The principal question is whether, in those circumstances, there is a risk to the safety of the public if Mr Uzelac retains the licences. The Commissioner is now satisfied that Mr Uzelac is capable of meeting the storage and safety requirements in the Act.

21 One of the principles of the Act set out in s 3 is to improve public safety by promoting the safe and responsible storage and use of firearms. Mr Uzelac’s actions in storing firearms and ammunition together and in failing to record the return of a firearm in the register undermine that principle to some extent. However, the circumstances of those contraventions and their effect on public safety must be taken into account. The reason for the breaches in relation to the storage requirement was an assumption on the part of Mr Uzelac that it was acceptable to store firearms and ammunition together given that on three previous occasions police officers had made no adverse comment, nor taken any action, in relation to that mode of storage. While those circumstances do not absolve Mr Uzelac of his responsibilities, they explain his conduct.

22 It is apparent that firearms and ammunition were stored together for some years, but the potential danger posed as a result was not great. Mr Uzelac provided extensive evidence of the security measures in place at the Silverwater premises. That evidence was not challenged. It demonstrates that Mr Uzelac takes security and safety seriously and has done everything reasonably within his power to ensure that his firearms are not stolen or otherwise unlawfully obtained. Mr Uzelac understands the importance of safe storage. Given the fact that the storage and register issues have now been addressed, there is virtually no likelihood that firearms will not be stored safely in the future.

23 Mr Uzelac holds Category H licences on behalf of himself and each company. Those licences carry special responsibilities which are spelt out in the Act. While all licensees should comply with all those responsibilities, not every breach will necessarily lead to a revocation of the licence. In this case the failure to record the return of the firearms in the register on two occasions was not a significant breach of the legislation, especially in view of the fact that the firearm was found in the safe. There was no real risk to safety as a result of this oversight. Again, while storage of firearms and ammunition together is a fundamental feature of the safety requirements, given the overall security measures in place, that conduct did not lead to any appreciable risk to public safety. Similarly there is no suggestion that such conduct reflects a lax attitude on the part of Mr Uzelac given the failure of police officers to comment adversely on previous occasions and the fact that he has now addressed the issue.

24 The Commissioner relied on the decision in McVerry -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 179. In that case, the Commissioner had revoked a Category H licence held by Mr McVerry who operated a security business. The Tribunal affirmed the Commissioner’s decision, however the circumstances of that case were far more serious than those in the present case. An employee of Mr McVerry was issued with a firearm when he had not completed any of the mandatory firearms safety training courses. Consequently he was not authorised to possess or carry firearms. He retained possession of the firearms when he was off-duty, but did not have the relevant permit authorising him to do so. The employee used the firearm to commit suicide.

25 The Tribunal concluded at [46] that Mr McVerry was not diligent in ensuring that the legislative requirements were complied with and that he took a “casual approach” to checking that employees were appropriately accredited. It cannot be said in this case the Mr Uzelac was not diligent or had a casual approach.

26 On the basis of all the evidence I am satisfied that there is no appreciable risk to public safety if Mr Uzelac retains his licences, nor is revocation justified on the basis of the breaches of the Act or regulation. In those circumstances I set aside the Commissioner’s decisions to revoke the licences.