Vickers v Commissioner of Police, NSW Police Force

[2015] NSWCATAD 14

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Vickers v Commissioner of Police, NSW Police Force [2015] NSWCATAD 14
Hearing dates:	1 December 2014
Decision date:	30 January 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Frost, Senior Member
Decision:	The revocation of the Applicant’s firearms licence is affirmed.
Catchwords:	FIREARMS – firearms licensing – fit and proper person – contraventions of firearms legislation – public interest
Legislation Cited:	Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Tannous v Commissioner of Police [2011] NSWADT 116
Category:	Principal judgment
Parties:	John Thomas Vickers (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Sparke Helmore Lawyers (Respondent)
File Number(s):	1410441

Judgment

Reasons for decision

1. Mr Vickers has held a firearms licence since November 2011. It was issued to enable him to undertake recreational hunting/vermin control. In September 2012 he applied to include sport/target shooting on his licence, and his licence was amended accordingly.

2. For reasons set out below, Mr Vickers’ firearms licence was suspended in January 2013 and then revoked in February 2014. Mr Vickers sought internal review of the revocation decision but the decision was affirmed. Mr Vickers has now applied to this Tribunal for review of the decision.

3. I have decided to affirm the decision to revoke Mr Vickers’ firearms licence. My reasons follow.

The hearing – application for adjournment

4. Mr Vickers’ solicitor, Mr Glenn Kable, notified the Tribunal on 25 November 2014, one week before the date set down for the hearing, that he was no longer acting for Mr Vickers.

5. At the commencement of the hearing on 1 December 2014, and as a matter of professional courtesy, Mr Kable, although no longer representing Mr Vickers, appeared for the purpose of notifying the Tribunal that Mr Vickers had contacted him late the previous week to ask him to apply for an adjournment of the hearing. All Mr Kable was able to tell me was that Mr Vickers had informed him that he was in north Queensland, that he was experiencing some unspecified health issues and that he was unable to attend for the hearing. I considered those to be inadequate reasons to justify an adjournment of the hearing, which had been set down since 30 September 2014.

6. After noting also that Mr Vickers had been directed to file and serve any material in support of his review application by 31 October 2014, and that he had not filed any material, I refused the adjournment application and excused Mr Kable. I then conducted the hearing in Mr Vickers’ absence.

The issues

7. The Commissioner contends, and I agree, that the issues for the Tribunal are:

1. Whether Mr Vickers is a “fit and proper person” and whether he “can be trusted to have possession of firearms without danger to public safety or to the peace” within the meaning of ss 11(3)(a) and 24(2)(a) of the Firearms Act 1996;

2. Whether Mr Vickers is no longer a “fit and proper person” within the meaning of s 24(2)(c) of the Firearms Act;

3. Whether Mr Vickers has contravened any provision of the Firearms Act or the Firearms Regulation 2006 (whether or not he has been convicted of an offence for such contravention), thus engaging s 24(2)(b)(ii) of the Firearms Act;

4. Whether it is not in the public interest for Mr Vickers to continue to hold his firearms licence, in accordance with s 24(2)(d) of the Firearms Act and clause 19 of the Firearms Regulation.

8. The Commissioner contends there is a further issue, namely whether Mr Vickers would be a risk to public safety and whether his continuing to hold a firearms licence would be contrary to the public interest for the purposes of s 11(5A) and 24(2A) (the latter incorrectly referred to in the Commissioner’s written submissions as 24(2)(a)) of the Firearms Act. Section 11(5A) of the Act concerns opinions reached by the Commissioner, based on criminal intelligence reports or other criminal information held in relation to the licensee. I am not satisfied that this provision is engaged here. In the circumstances I do not need to address this further issue raised by the Commissioner.

Is Mr Vickers a “fit and proper person”?

9. The Commissioner must not issue a firearms licence to an applicant unless satisfied that the applicant “is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”: s 11(3)(a) of the Firearms Act.

10. In addition, the Commissioner may, as a matter of discretion, revoke a licence for any reason for which the licensee would be required to be refused a licence of the same kind (s 24(2)(a) of the Firearms Act), or if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence (s 24(2)(c) of the Firearms Act).

11. It is clear from those provisions that being a fit and proper person is a central consideration in the firearms licensing regime.

12. In discussing the meaning of the expression “fit and proper person”, Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

13. The Commissioner submits that Mr Vickers is not a fit and proper person to hold a firearms licence on the basis that there is evidence that he has disregarded the underlying principles of the Firearms Act, as set out relevantly in s 3(1) of the Act as follows:

The underlying principles of this Act are:

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

2. to improve public safety:

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms …

14. The Commissioner relies significantly on the events that occurred in January 2013 and which led directly to the suspension of Mr Vickers’ firearms licence. The following narrative is based on a Police facts sheet prepared for the Local Court where Mr Vickers was charged with not keeping firearm safely and not having approved storage for firearms. The first charge was withdrawn and the second dismissed. Nevertheless, the officers involved in the events, Senior Constables Page, Davidson and Sharpe, all gave oral evidence in the Tribunal, confirming the statements they had prepared which formed the basis of the facts alleged. I accept their evidence and find the following account at [15]-[18] of these reasons to be accurate.

15. Shortly after midnight on 12 January 2013 police officers observed Mr Vickers standing next to an unregistered vehicle in a petrol station in Wahroonga. They also observed an “exchange” between Mr Vickers and another person in the parking area of the service station.

16. Mr Vickers drove out of the service station and along the Pacific Highway. His driving was somewhat erratic and the officers pulled him over for a random breath test. He tested negative. The officers told him they wanted to search his car and asked him if there was anything in it that should not be there, or that might injure them, such as syringes, if they were to undertake a search. On at least two occasions he replied “I respectfully and politely decline to answer.”

17. The officers searched the car and found “five (5) firearms in their bags, on the back seat of the [car] underneath a blanket”. They also found, loose in the glove box, 3 x 20/20 rounds of ammunition and 2 x 12 gauge shot gun shells. In the back of the passenger seat pocket there were “about 4 or 5 loose 12 gauge shot gun shells. Underneath the passenger seat there were 3 x boxes of 20/20 rounds. A further metal box, ‘locked’ full of ammunition was also located, as well as another box of ammunition on the back seat.”

18. Mr Vickers told the officers the firearms were all his, and licensed. He said he was on his way to Mudgee for some shooting, even though he had earlier said that he was going “to a mate’s place, maybe to the casino”. The officers pointed out to him that he was driving in the wrong direction to get to Mudgee and then he became “very evasive”. The officers also asked him about going to the casino and he said “I believe it is OK if the guns are covered and the vehicle is under video surveillance at all times. I am complying with the legislation.”

19. The behaviour of Mr Vickers in transporting unsecured firearms in his car, giving two different versions to Police as to his intended destination, and declining to answer questions that were directed towards ensuring the physical safety of the officers concerned, is not the type of behaviour expected of a person to whom the privilege of firearms ownership has been extended. It is behaviour that cannot be condoned. It is behaviour that demonstrates that Mr Vickers has a poor understanding of what firearms ownership requires of him, or that he understands it but disregards it anyway.

20. Not only does Mr Vickers’ behaviour demonstrate that he is not a fit and proper person to possess firearms; it also demonstrates that he cannot be trusted to have possession of firearms without danger to public safety. His indifferent attitude to the risk to public safety that would have been created by leaving unsecured firearms in his car in a casino carpark, with no protection other than video surveillance, is unacceptable.

Has Mr Vickers contravened any provisions of the Firearms Act or the Firearms Regulation?

21. Mr Vickers has contravened s 39(1) of the Firearms Act by not taking all reasonable precautions to ensure the safe keeping of his firearms.

22. As a holder of a category AB licence, he has contravened s 40(1) of the Act by not storing them in a “locked receptacle of a type approved by the Commissioner” while they were being transported in his car. I take that view since, in terms of paragraph (a) of s 40(1), the firearms were not “actually being used or carried” at the time he was intercepted by the Police. I do not accept that they were being “carried” at the time; in context, that word means actually being carried on the person, not being transported in a motor vehicle.

23. Mr Vickers has contravened s 69 of the Firearms Act and clause 16 of the Firearms Regulation by not notifying the Commissioner of a change of residential address or a change in the address where he would be storing his firearms. The information available to the Commissioner, which I accept as accurate, is that Mr Vickers has not been living at his recorded address, and I infer also that he has not been storing his firearms there, since at least January 2013. That state of affairs came to the Commissioner’s notice quite by accident, and not because of any communication from Mr Vickers.

24. The Commissioner has also raised concerns about whether Mr Vickers has complied with clause 30(1)(b) of the Firearms Regulation. That provision allows a licensee who, like Mr Vickers, is a member of an approved hunting club and who has established recreational hunting/vermin control as a genuine reason for holding a licence, to:

participate in shooting activities other than those approved by the approved hunting club, but only on the land for which:

(i) the licensee has been given the written permission of the owner or occupier (or of an officer of an agency referred to in the genuine reason of recreational hunting/vermin control) to shoot the game described in the permission, or

(ii) the licensee has been given permission, as verified by statutory declaration, by such owner, occupier or agency to shoot the game described in the statutory declaration.

25. One of the versions provided to Police on 12 January 2013 was that Mr Vickers was on his way to Mudgee to do some shooting for vermin control purposes. He now relies on a written statement dated 1 July 2014 from a landowner who claims he has given permission to Mr Vickers to control various types of animal pests on his property. I agree with the Commissioner that the July 2014 statement cannot be relied on to support vermin control activities that Mr Vickers claims he was undertaking 18 months earlier. I am satisfied that Mr Vickers has contravened clause 30(1)(b) of the Regulation.

Is it in the public interest for Mr Vickers to continue to hold a firearms licence?

26. Mr Vickers has a poor traffic record, including speeding offences, driving while suspended and driving an unregistered vehicle. His traffic record demonstrates an inability or an unwillingness to comply with legislation directed towards public safety, and that is a legitimate matter to take into account in considering whether it is in the public interest that he should be permitted to hold a firearms licence: Tannous v Commissioner of Police [2011] NSWADT 116 at [37].

27. A final matter is that Mr Vickers is on what has been described as a “cocktail” of prescription drugs, apparently to control pain resulting from a back complaint. This raises concerns about his ability to maintain appropriate control over firearms in his possession. There is no medical report to indicate the detailed reasons for Mr Vickers’ need for the medication or that his condition and his treatment of it have no material bearing on his mental and physical capacity when storing and handling firearms.

Conclusion

28. Sections 24(2)(a), (b)(ii), (c) and (d) of the Firearms Act are engaged, and as a result the Commissioner, and the Tribunal on review, has a discretion to revoke Mr Vickers’ firearms licence. In all the circumstances the preferable decision is to exercise that discretion.

Decision

29. The revocation of Mr Vickers’ firearms licence is affirmed.

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

Registrar

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: 30 January 2015