Walker v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 225

CITATION:	Walker -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 225
DIVISION:	General Division
PARTIES:	APPLICANT Kevin Allan Walker RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023147
HEARING DATES:	03/10/2002
SUBMISSIONS CLOSED:	10/03/2002
DATE OF DECISION:	11/06/2002
BEFORE:	Grotte E - 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 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 29 Police v Toleafoa [1999] NSWADTAP 9 O'Sullivan v Farrer (1989) 168 CLR 210
REPRESENTATION:	APPLICANT In person RESPONDENT J Klarica, barrister
ORDERS:	The decision of the Commissioner to revoke the applicant's licences is affirmed.

Introduction

1 On 25 May 2002 the Commissioner of Police (the Commissioner) revoked Mr Walker’s Category A,B and C firearms licences. These licences enabled Mr Walker to engage in recreational shooting and vermin control on his property. The reason for the revocation was that Mr Walker had been found guilty, with no conviction recorded, of the following two firearms offences in the local court:

(i) Possessing an unregistered firearm - not prohibited firearm/pistol;
(ii) Not keeping firearm safely - not prohibited firearm/pistol.

2 Mr Walker was placed on 12 month good behaviour bonds in relation to these offences.

3 Accordingly, the Commissioner of Police was not satisfied that it was in the public interest for Mr Walker to continue to hold a firearms licence.

4 On 8 July 2002 Mr Walker applied to the Tribunal for a review of that decision.

Jurisdiction

5 The Tribunal has jurisdiction to determine this matter pursuant to s 75(1)(c) of the Firearms Act 1996 ( Firearms Act ) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

The relevant law

6 The Firearms Act sets up a scheme for licensing people to possess and use firearms. One of the principles of the Act as set out in section 3(1)(a) is:

(7) to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety.

7 Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. The Commissioner relied on a single ground in this case, namely section 24(2)(d). That provision states that a licence may be revoked for any other reasons prescribed by the regulations. Clause 17 of the Firearms (General) Regulation 1997 (the Regulation) states that:

In accordance with section 24(2)(d) of the 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.

Issue

8 The issue for the Tribunal to determine is whether the Commissioner of Police made the correct and preferable decision in revoking Mr Walker’s firearms licences on the ground that it is not in the public interest for Mr Walker to continue to hold a licence.

Evidence

9 The documentary evidence before the Tribunal consisted of the following:

(i) Applicant’s firearms licence history;
(ii) Criminal History and Bail Report relating to charges of 20 November 2001;
(iii) Breach Report dated 20 November 2001;
(iv) NSW Police Service COPS reports relating to incidents dated 2 September 2001, 8 September 2001, 7 May 2001; 17 September 2001; 7 November 2001 and 15 November 2001;
(v) Recommendation from Constable B T Bowles, General Duties, Forbes dated 15 November 2001 recommending that Mr Walker’s firearms licence continue to be suspended until the conclusion of the court proceedings on the basis that he was considered not to be fit to hold a shooter’s licence;
(vi) Notice of Suspension under the Firearms Act 1996 to the applicant dated 15 November 2001;
(vii) Revocation Notice together with a Statement of Reasons;
(viii) Correspondence from Mr Walker to the Commissioner of Police received by the Police Service on 24 May 2002;
(ix) Internal Review NSW Police Service dated 19 June 2002;
(x) Correspondence from Mr Walker to the NSW Police Service dated 28 June 2002;
(xi) Correspondence from NSW Police Service to Mr Walker dated 1 July 2002;
(xii) Correspondence from Mr Walker to NSW Police Service dated 29 June 2002;
(xiii) Correspondence from Mr Walker to the NSW Police Service dated 2 July 2002;
(xiv) Correspondence from Mr Walker faxed to the NSW Police Service on 4 July 2002;
(xv) Correspondence from Mr Walker to the NSW Police Service dated 22 July 2002;
(xvi) Correspondence from the NSW Police Service to Mr Walker dated 3 July 2002.
(xvii) Character reference for Mr Walker from Mr Troy Dunn.

Oral evidence of Mr Walker

11 Mr Walker told the Tribunal that he is a farmer. He held firearms licences to cull foxes and kangaroos. He said that the foxes were a particular problem when the ewes were lambing usually two times every year. He said that without his firearms he now baits/poisons the foxes. He does this once a year but he could do it more often. This is an effective method of culling them but he preferred to shoot them. Mr Walker told the Tribunal that he allows someone else to shoot the kangaroos because he does not like to kill them and that person gets paid by the kilo of kangaroo meat.

12 Mr Walker told the Tribunal that in August 2001 he was selling some sheep. A stock inspector, Leanne Smith, examined his sheep at the saleyard. She discovered that they were lice infested and she reported him to the Rural Lands Protection Board (RLPB). This affected the price he was able to get for his sheep at the saleyard. He said that he was angry because he was not present when this happened and he was unable to withdraw his sheep from sale. He was also angry because he was fined $400 by the RLPB.

13 Mr Walker said that he became agitated and he decided to call the RLPB. He explained that these telephone calls were made in the heat of the moment. He said that these were the first offences in his life.

14 Counsel for the Commissioner questioned the applicant about some faxes which he had sent to the Australian Wool Exchange (AWE) on 13 March 2001. He agreed that he had sent some faxes and that they were offensive. He denied making any threats on that occasion but believed that he had said something like “stick your shit up your bum”. Mr Walker explained that he was living on his own without someone, like a wife, to counsel him. He said that he was angry about the cost of registration with the AWE for trading. He said he gets angry and has to counsel himself. He said that he needs someone to bring him down to earth.

15 Counsel for the Commissioner questioned the applicant about the other incidents detailed in the COPS reports before the Tribunal. Mr Walker agreed that he said what had been recorded on those COPS reports.

16 Counsel for the Commissioner questioned Mr Walker about the telephone call which he made to a receptionist at the RLPB on 29 August 2001. He asked Mr Walker to explain the reason he wanted to know personal details of the stock inspector, Ms Leanne Smith, such as what type of vehicle she owned. Mr Walker told the Tribunal that he wanted to “put a bit of fear into her” because she was a “posh little bitch”. He agreed that he had said to the receptionist that “I’ll not be giving you my name, there is some payback to do”.

17 Mr Walker was asked to explain why he telephoned the RLPB again two days later on 31 August 2001, demanding “is that mongrel bastard, Smith, there?. He said that it was “just madness” and that he “just wanted to hurt the RLPB”. He agreed that he said to the receptionist who had nothing to do with the infringement notice that “I’m going to come and fuck the arse off you” but he said that he “wanted to hurt a lady like she had hurt [him]”. Mr Walker said that at that time he was stressed and he felt bitter. He was trying to sell his farm and pay out his former wife but he had only received bad offers for his farm.

18 Mr Walker was asked to explain why he made the telephone call and threats to the RLPB receptionist on 17 September 2001. He was asked whether he had any contact with Ms Smith or the RLPB to provoke these calls. He said that he had no contact but he was upset. He denied saying that he would come down and shoot someone but admitted that he probably said something like “Jesus I feel like shooting myself or some bugger”. He agreed that the police had contacted him on 18 September 2001 and warned him not to contact Ms Smith or the RLPB but he agreed that he nonetheless went to the saleyards in November 2001 and behaved in an intimidating manner towards Leanne Smith. Mr Walker said that he blames Ms Smith for creating trouble and regards her as a “real little bitch”.

19 Mr Walker agreed that when the police visited his home on 15 November 2001 his firearms’ safe was unlocked and his rifle was loaded with bullets. He said that this not was his usual practice but that there had been a fox present on his farm the night before which he had tried to shoot and he had been careless about putting the rifle away properly. Mr Walker agreed that when he obtained his shooter’s licence he had signed an undertaking that he would comply with the legislative requirements but that he had failed to do so.

20 The applicant was asked about the contents of his letters to Ms Sandra Grugan of the NSW Police Service. He said that he did not have a high opinion of the Police and he felt that the police were judging him without knowing him.

21 Mr Walker told the Tribunal that he had two sons who were living in Queensland and that they have gun licences. He said that if he could not have his firearms returned to him that he would be prepared to accept that they be sent to his sons. He regarded his firearms as heirlooms which were of great significance to him. He said that he has never pointed a gun at anyone but feels that he needs them to feel safe.

22 Following the Tribunal hearing the applicant forwarded a copy of a character reference prepared on his behalf by Mr Troy Dunn at the request of the Tribunal. Mr Dunn stated that he has known Mr Walker for approximately 15 years. He described Mr Walker as a very generous and caring person who has helped him on occasion without hesitation. The Tribunal has no information before it that a copy was forwarded to the Commissioner. However, in light of the overwhelming evidence before the Tribunal relating to the applicant’s character in the context of the issue before it, the Tribunal places no weight on this personal reference.

Reasons and decision

23 Mr Walker breached certain provisions of the Firearms Act in relation to not keeping a firearm safely and possessing an unregistered firearm even though he was not convicted of those offences.

24 Although the Firearms Act does not list the factors which a decision maker must take into account when deciding whether to revoke a person’s licence, the Tribunal stated in Phegan v Commissioner of Police, New South Wales Police Service [2002] NSW ADT 127 that “in those circumstances the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act”.

25 The principles of the Firearms Act are set out in s 3:

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
(c) to facilitate a national approach to the control of firearms.

26 It is noted that Parliament’s intention in this legislation was not to leave the manner in which firearms are to be stored to the discretion of the licence holders but instead imposed detailed and strict requirements on all licesees.

27 Decisions made by the Tribunal in similar matters make it clear that for the Tribunal to set aside a decision by the Commissioner to revoke a licence based on failure to store firearms safely, the applicant must demonstrate something which takes his or her case outside the ordinary case. Mr Walker has not demonstrated any persuasive consideration which would take this matter outside the ordinary case. Mr Walker told the Tribunal that he had been “careless” in relation to the storage of his firearms on the occasion that the police visited his home in November 2001. He said that he knew that he was required to store his firearms in a locked cabinet. He said that this was not his usual practice but that he had been hunting a fox the night before on his property. Mr Walker sought to excuse his conduct by claiming that others have worse conduct and therefore his conduct was acceptable.

28 Mr Walker also did not demonstrate any contrition in either failing to store his firearms safely or in failing to register his air rifle. He did not appear to understand the strict nature of the requirements of the Act and appeared to pay lip service to them. Mr Walker threatened during the course of the Tribunal hearing that if he did not get his licence back that he would obtain firearms illegally.

29 It was submitted on behalf of the Commissioner that Mr Walker’s character is relevant to the question of whether it is in the public interest for Mr Walker to have access to firearms. It was submitted that Mr Walker had a demonstrated behavioural pattern of threats whenever he felt frustrated and he did not appear to be stable.

30 The phrase “in the public interest” was considered by the High Court in O'Sullivan v. Farrer (1989) 168 CLR 210. In a joint judgment, Mason CJ, Brennan J, Dawson J, and Gaudron, said that :

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

31 The concept of “the public interest” was considered by this Tribunal in two previous decisions, namely Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25) and Ward v Commissioner of Police, New South Wales Police Service [2000]NSWADT 28. In Toleafoa the Appeal Panel stated 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.

32 In Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (23 March 2000), the Tribunal concluded that these comments were equally applicable in the context of the Firearms Act. The 'public interest' in relation to the holding of a firearms licence relates to the objects and principles set out in Section 3 of the Firearms Act.

33 The evidence before the Tribunal demonstrates that Mr Walker has difficulty managing his frustrations and anger and seeks to retaliate in a threatening and intimidating manner against those persons he considers to be responsible. Mr Walker sought to explain his behaviour as occurring in the “heat of the moment”. However the incidents of threats and intimidating behaviour extended from the end of August 2001 into November 2001. They did not cease even though Mr Walker was warned by the police not to have any contact with Leanne Smith. Indeed, over time the threats became more serious culminating in the threat which caused the police to visit his home. Whether Mr Walker said “I’m coming down to shoot someone” or “Jesus I feel like shooting myself or some bugger”, the essence of the threat was the same. Although Mr Walker said that he has not ever pointed a gun at any one, his own evidence was that he made these threats.

34 Mr Walker’s own evidence is that he lives alone and whenever he becomes agitated he has no one to calm him down. He has demonstrated that he is unable to deal with his anger and frustration constructively. This view is supported by his written correspondence to Ms Sandra Grugan and by his intimidatory faxes to the Australian Wool Exchange in March 2001.

35 The objects and principles of the Firearms Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. The combination of Mr Walker’s demonstrated threatening and intimidatory behaviour and his failure to recognize his responsibilities under the Firearms Act persuades the Tribunal that it is not in the public interest for him to continue to hold a firearms licence. The Tribunal has considered whether the applicant needs a firearm for culling purposes. The Tribunal notes that from his own evidence he has other effective options available to him.

36 For the reasons set out above, the Commissioner’s decision to revoke the licences is affirmed.