Ward v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 28

CITATION:	Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
DIVISION:	General Division
PARTIES:	APPLICANT Neil David Ward RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	993268
HEARING DATES:	28/02/00
SUBMISSIONS CLOSED:	02/28/2000
DATE OF DECISION:	03/23/2000
BEFORE:	Hennessy N (Deputy 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:	Firearms Act 1996
CASES CITED:	Saffron -v- FCT (No 2) (1991) 102 ALR 19 Ridley -v- Secretary, DSS (1993) 29 ALD 726 Bourke -v- Commissioner of Police [1998] NSWADT Pollard -v- Commonwealth DPP (1992) 28 NSWLR 659 Fenton -v- Commissioner of Police 2000 NSWADT 16 Khan -v- Minister for Immigration and Ethnic Affairs (unreported, December 1987) Australian Broadcasting Tribunal -v- Bond 1990 94 ALR 11
REPRESENTATION:	APPLICANT K Robinson, solicitor RESPONDENT G. Doherty, solicitor
ORDERS:	1. The Commissioner's decision to revoke Mr Ward's Category A, B and C licences is set aside.

Introduction

1 Mr Ward is a 43 year old man who has held firearms licences of various categories for most of his adult life. His most recent position was Regional Manager of National Parks for Western NSW. His work in natural resource management and his ownership of rural properties has led to his need for firearms licences.

2 On 17 March 1999 the Firearms Registry within the Police Service issued Mr Ward with Category A, B, and C licences under the Firearms Act 1996 (the Act). These licences expire on 6 May 2004.

3 On 28 July 1999, Mr Ward was convicted in Dubbo Local Court of assaulting his partner, Sue Benendyka.. He was fined $1000. The Court also issued an Apprehended Violence Order (AVO) for 12 months, however Mr Ward applied to have the order revoked. On 17 August 1999 the AVO was revoked with the consent of the applicant’s partner.

4 On 7 July 1999, prior to being convicted, the Firearms Registry served a Notice of Suspension advising Mr Ward that his licence had been suspended and inviting him to give the Commissioner of Police reasons in writing as to why his licence should not be revoked.

5 On 13 October 1999 Mr Ward was served with a Revocation Order. Mr Ward requested a Statement of Reasons. The statement relied on s 24(2)(a) and s 24(2)(b) of the Act and referred to a policy for determining who is a fit and proper person to hold a licence. An internal review was carried out on 30 November 1999 which relied on the same legislative provisions and reasoning process. The original decision was affirmed.

6 On 1 December 1999 Mr Ward lodged an application for a review of the decision to revoke his firearms licences with the Tribunal. At the Directions Hearing on 14 January 2000 I granted the Commissioner of Police leave to file an Amended Statement of Reasons. That statement, filed on 28 January 2000, relied on s 24(2)(a) and (c) of the Act and Clause 17 of the Firearms (General) Regulation 1997 (the Regulations).

Legislative scheme

7 The Act sets up a scheme for licensing people to possess and use firearms. Section 24 contains provisions relating to the revocation of licences.

8 Section 24(2) of the Act, so far as it is relevant, provides that:

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
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence,
(d) for any other reason prescribed by the regulations.

9 Clause 17 of 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.

Evidence and Findings of Fact

10 Mr Ward provided a statement which was filed on 24 February 2000. The facts alleged in that statement were not challenged by the respondent and I accept them. Similarly the facts alleged in the statement of Ms Susan Benedyka were not challenged by the respondent and I accept them.

11 In oral evidence Mr Ward said that in his former position with the National Parks and Wildlife Service part of his job involved assessing and training other people in firearms use for the purpose of pest control. He introduced a firearms course for professional shooters in the Dubbo area.

12 In relation to the circumstances of the offence itself, the respondent tendered a Charge Sheet which set out the facts as alleged by the Police. Mr Ward gave oral evidence that his relationship with Ms Benedyka had been deteriorating for about 12 months prior to the assault in July 1999. While he did not agree completely with the facts detailed on the Fact Sheet, he appreciated that this was how Ms Benedyka perceived the incident and he did not deny assaulting her.

13 Mr Ward has been convicted of an offence based on the Fact Sheets tendered to the Tribunal and other evidence. Merits review cases at the federal level have held that ". . . where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based." (Saffron v FCT (No 2) (1991) 102 ALR 19; Ridley v Secretary, DSS (1993) 29 ALD 726 at 731). However in this case, the applicant did not seek to fundamentally challenge the facts as alleged in the Charge Sheet. He admitted moving the car forward before Ms Benedyka had closed the door resulting in her falling over. He also admitted threatening her. He did not deny slapping her across the face or holding her throat. I am satisfied that my decision should be based on the facts as alleged in the charge sheet.

14 Mr Ward gave oral evidence stating that he sought counselling assistance after the conviction and feels that he has changed a great deal as a result. He says he is communicating better with his partner and that he understands himself a lot better. He and his partner have reconciled since the incident and are living together.

15 Rosemary Petheram, a personal counsellor in Dubbo, saw Mr Ward on three occasions following his conviction. She also spoke with him on 22 February 2000. The conclusion set out in her report of that date was that:

Given Mr Ward’s past history, the measures which he has taken to address his level of stress and the strategies he has put in place for managing his anger, I feel it is unlikely that he will be violent in the future.

16 Mr Ward provided several character references to the Local Court at the time of the hearing. Copies were also provided to the Tribunal and I have taken them into account.

17 The first ground on which the Commissioner may revoke a licence is for any reason for which the licensee would be required to be refused a licence of the same kind. Under s 11(5) of the Act:

A licence must not be issued to a person who:

(a) is under the age of 18, or
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales of elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or
(d) is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace or
(e) is subject to a firearms prohibition order.

18 The only ground on which the Commissioner could be required to refuse Mr Ward a licence would be because he has been convicted of an offence prescribed by the Regulations within the previous 10 years. Clause 5 of the Firearms (General) Regulation 1997 lists the prescribed offences, one of which is offences involving violence.

For the purposes of sections 11(5)(b) and 29(3)(b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

Offences involving violence
An offence committed under the law of any Australian or overseas jurisdiction:
(i) involving the infliction (or attempted infliction) of actual bodily harm to another person, and
(ii) in respect of which, either the convicted person has been sentenced to imprisonment for 28 days or more, or a penalty of $200 or more has been imposed on the person.

19 The Commissioner’s representative, Mr Tunks, submitted that the offence committed by Mr Ward is a prescribed offence involving violence. He said that although Mr Ward was convicted of common assault, rather than of assault occasioning actual bodily harm, the circumstances of the offence involved the infliction of actual bodily harm as evidenced by the fact sheet. Ms Robinson, representing the applicant, disagreed. She submitted that because the infliction (or attempted infliction) of actual bodily harm is not involved in the offence itself, it does not come within the definition of a prescribed offence.

20 Similar issues have arisen under the Security Industry Act 1997. The Tribunal has decided that prescribed offences describe the offence itself rather than the particular circumstances of an offence. For example, in Bourke v Commissioner of Police [1998] NSWADT, Judge O’Connor, President of the Tribunal, held that:

“. . . the Tribunal is only able to proceed to satisfy itself that the objective facts as they are called, upon which the Commissioner relied were properly relied upon by the Commissioner. That clearly goes simply to the question of whether there was a conviction or a finding of a charge proven of a kind which fits within the parameters of section 16.”

21 This approach has subsequently been followed in several Tribunal cases and is supported by Supreme Court decisions including Pollard v Commonwealth DPP (1992) 28 NSWLR 659. It would not be practical or desirable for the Tribunal to have to determine whether, in relation to a particular offence, actual harm had been inflicted.

22 For these reasons, this case is not one to which s 24(2)(a) can apply because, being an offence of common assault, it does not involve the infliction (or attempted infliction) of actual bodily harm.

23 The second ground on which the Commissioner may revoke a licence is if he is of the opinion that the licensee is no longer a fit and proper person to hold a licence. In determining this issue, the Commissioner has issued a policy dated 1 July 1997 which states in part, that for the purpose of determining whether a person is ‘fit and proper’ under the Firearms Act 1996, and whether refusal or revocation action should be initiated, the following criteria, among others, should be adopted:

A. A period of review covering ten years prior to licence and permit date of application to be applied in relation to any conviction or recognisance described in B,C, D, E and F below
B. Any type of conviction for an offence involving ‘violence’ whether or not committed in New South Wales, during the period of review to require refusal or revocation action.

24 In my view this policy does not comply with the legislation for at least two reasons. Firstly, it imposes an obligation on an administrator to revoke a licence where certain convictions have been recorded. Section 24(2)(c) of the Act gives an administrator a clear discretion to revoke or not to revoke a licence. As I said in Fenton v Commissioner of Police 2000 NSWADT 16 (23 February 2000) at [17] in relation to similar provisions under the Security Industry Act 1996:

In my view, the Commissioner should not fetter his discretion in any way by assuming that he is obliged to revoke a licence once the existence of a relevant conviction has been brought to his attention. Gummow J in Khan v Minister for Immigration and Ethnic Affairs (unreported, December 1987) stated that:
. . . what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.

25 Secondly, the policy does not comply with the legislation because it obliges an administrator to revoke a licence if the person has been convicted of any offence involving violence. Given that it is not mandatory to refuse a person’s application for a licence unless they have been convicted of a violent offence “involving the infliction (or attempted infliction) of actual bodily harm to another person” the policy is much broader than contemplated by the legislation.

26 The assessment of whether a person is a “fit and proper” person to hold a firearms licence, was discussed in Australian Broadcasting Tribunal v Bond 1990 94 ALR 11 Toohey and Gaudron JJ at 65. stated that:

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.

27 One of the objects of the Act, as set out in s 3, is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.” In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

29 The Commissioner’s representative stated that Mr Ward’s reputation was not in issue and I am satisfied, based on the references provided to the Tribunal, that he is a person of good repute.

30 Mr Ward has, within the last 8 months, threatened and assaulted his partner in a way which resulted in swelling of the left thigh, red marks to her left cheek, blood on her lower lip and bruising to the right side of her neck. The factors that suggest that despite this violent conduct, Mr Ward would not pose a risk to public safety if he had a firearms licence are as follows:

• Mr Ward has never been convicted of any other offences involving violence;
• Mr Ward has attended counselling and has shown genuine remorse and determination not to re-offend;
• Mr Ward’s counsellor is of the view that it is unlikely that he will be violent in the future and;
• Mr Ward has experience in the possession and use of firearms and in teaching others to use firearms.

31 Despite the violent nature of the offence, I am satisfied taking into account these factors, that Mr Ward is a fit and proper person to have a firearms licence.

The third ground - contrary to the public interest

32 The third ground on which the Commissioner relied was that 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. The Appeal Panel of this Tribunal considered the meaning of “public interest” in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25) which was a security licence matter. In that case 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.

33 These comments apply equally to the Firearms legislation. In this case the respondent relied exclusively on the applicant’s conviction as the basis for refusing the application. I have found that the applicant is a fit and proper person to hold a licence. No additional material was put in relation to the Commissioner’s argument that granting the licence would not be in the public interest.

34 The Commissioner’s decision to revoke Mr Ward’s Category A, B and C licences is set aside.