Whiteman v Commissioner of Police, NSW Police Service

[2002] NSWADT 179

CITATION:	Whiteman v Commissioner of Police, NSW Police Service [2002] NSWADT 179
DIVISION:	General Division
PARTIES:	APPLICANT Christopher Whiteman RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	023074
HEARING DATES:	21/05/02
SUBMISSIONS CLOSED:	05/21/2002
DATE OF DECISION:	09/25/2002
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:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Police v Toleafoa [1999] NSWADTAP 9 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Coates v Commissioner of Police, New South Wales Police Service [2001] NSWADT 56 Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	The decision of the Commissioner to revoke the applicant's licence is affirmed

1 On 15 January 2002 the Commissioner of Police (the Commissioner) revoked Mr Whiteman’s Category AB firearms licence (recreational hunting/vermin control). The decision to revoke the licence arose from a recommendation from a police officer. On 27 March 2002 Mr Whiteman applied to the Tribunal for a review of this decision.

2 The Tribunal has jurisdiction to hear this matter under s 75 of the Firearms Act 1996 (the Firearms Act) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Relevant law

3 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. Under s 24(2)(d) a licence may be revoked for any other reason 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.

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

Evidence

5 The documentary evidence before the Tribunal consisted of:

· a copy of the Police Service's file;

· a statement from Senior Constable Causer dated 16 May 2002;

· numerous records of COPS events; and

· four character references in relation to Mr Whiteman.

6 The character references state that Mr Whiteman is an honest, hard-working, obliging, helpful, reliable and trustworthy. Mr Whiteman said that two of the four referees, his first wife’s brother and uncle, know of the history of his domestic disputes. The other two referees are not familiar with that history.

7 Mr Whiteman was asked to address the issues arising from numerous COPS entries. The first entry (E 1992486) related to an incident on 4 April 1995, when Mr Whiteman’s first wife called the police in relation to a verbal argument over access to their daughter. There were no threats of violence and the police took no further action. Mr Whiteman said that they were involved in a heated argument that day but that he and his first wife parted amicably and there was never any violence between them.

8 The second entry (E 1447058) involved an incident on 24 August 1995, when Mr Whiteman accused his former partner, Ms Hands, and a friend of hers, of pouring nail polish remover on his car. Ms Hands denied the allegation and, according to the police record, all parties exchanged verbal abuse. Ms Hands alleged that Mr Whiteman assaulted her but there was no physical evidence of an assault. Mr Whiteman denied that he assaulted Ms Hands. On 7 April 1995 police obtained an interim apprehended violence order in relation to all parties to restrain their behaviour.

9 The third COPS entry (E 7909140) relates to an incident on 26 August 1999 when Mr Whiteman, Ms Hands and their infant son were in a car. According to Mr Whiteman, Ms Hands asked him to take her back to the town from which they had come. When he refused to do so, Mr Whiteman alleged that Ms Hands threatened him with a tyre lever. Mr Whiteman could not explain why this part of the incident was not recorded by the police. In the police record, Ms Hands alleged that Mr Whiteman pushed her out of the car. The baby was allegedly asleep in the back of the car during this incident.

10 The fourth COPS entry (E 14124202) relates to an incident on the 4 January 2000 when Mrs Bevan, Ms Hands’ grandmother, alleged that Mr Whiteman threatened her saying, “You’re a vindictive old bitch. I could kill you.” Mrs Bevan also alleged that Mr Whiteman pulled a child off her lap. Mr Whiteman denies threatening to kill Mrs Bevan. He said he remembers “some sort of struggle” but can’t recall exactly what happened. Mr Whiteman speculated that Mrs Bevan could have made up the allegation to get back at him because five years previously he had lived with her and she was upset when he left. Mr Whiteman said he had spoken to Mrs Bevan recently and they were on good terms.

11 The fifth COPS entry (E 11223296) relates to an incident on 8 February 2000 when Christopher Hopkins, Ms Hands’ current partner, alleged that Mr Whiteman said to him on the phone that “I’m coming over to smash you. I’m going to go through the house and smash everything in there.” The police concluded, after making further inquiries, that both Mr Whiteman and Mr Hopkins had threatened one another during the course of the conversation. Mr Whiteman denied speaking to Mr Hopkins that day.

12 The sixth COPS entry (E 8958819) relates to an incident on 9 March 2000 where Ms Hands alleged that Mr Whiteman had broken into her house and left property belonging to her in a bedroom. Mr Whiteman said that he did drop off some clothes but left them in a carport. The police could find no sign of forced entry and no formal action was taken. Mr Whiteman alleged that Ms Hands was lying about this incident.

13 The seventh COPS entry (E 12097721) relates to an incident on 18 of June 2001 where Ms Hands alleged that Mr Whiteman and his adult son, Colin, were watching her house. Mr Whiteman and Colin both deny this. Ms Hands’ mother, Betty, alleged that Mr Whiteman and his son told her that they were going around to Christopher Hopkins’ house to break his legs and kill Ms Hands. The following day, Mr Whiteman spoke to Betty Hands at the supermarket and allegedly told her that if Ms Hands and Christopher come down the street today we will be waiting and “heads will roll.” Mr Whiteman and his son Colin denied that they were watching the house or made such a threat.

14 Ms Hands applied for an apprehended violence order over this incident but when Mr Whiteman and his son Colin went to court the case did not proceed.

15 Ms Hands told police that Mr Whiteman had several firearms at his residence which were not stored safely. Police obtained a search warrant which they executed at Mr Whiteman’s home on 20 June 2001. Police found an unregistered BB air rifle owned by Mr Whiteman on top of a wardrobe. Two other firearms were located in a locked gun cabinet in the laundry. Mr Whiteman says that it was sheer stupidity on his part not to hand in the firearm during an amnesty. In relation to the allegation that he failed to store the firearm in accordance with the legislation, Mr Whiteman said that Ms Hands knew he had an unregistered firearm. He suspects her of breaking in to his house and removing the BB rifle from the safe. He says he has no proof of this and doesn’t know for sure how the firearm came to be on top of the cupboard.

16 Mr Whiteman was found guilty of not storing a firearms safely but no conviction was recorded.

17 The eighth cops entry (E 12266413) relates to an incident on 1 July 2001 when Mr Whiteman, accompanied by police, went to Ms Hands’’ house in order to have an access visit with his son. Ms Hands refused to give Mr Whiteman access to their son and police advised each party to seek legal advice. Mr Whiteman obtained an order from the Family Court following this incident and his son now resides with him.

18 The ninth cops entry (E 12267657) relates to an incident which allegedly occurred on 29 July 2001 when Ms Hands said that Mr Whiteman sexually assaulted her. Mr Whiteman said that this allegation is a lie. Ms Hands retracted her statement a week later. Police observed Ms Hands and Mr Whiteman having a friendly conversation on 3 August 2001 and confirmed that Ms Hands has no fears for her safety.

19 The tenth COPS entry (E 12345314) relates to an incident on the 27 July 2001 when Ms Hands accused Mr Whiteman of taking the children to his girlfriend’s place when the condition of access was that they remain at his residence. Police informed Ms Hands that the matter was not police related and that there was no threat to the children.

20 Mr Whiteman agreed that police have had to intervene in relation to domestic issues on ten occasions in the past six years. Mr Whiteman said that the reason for the intervention was that he has stood up for the rights of his children. He denies that he has ever been aggressive or that he has behaved in a way that would justify police being called. He said that Ms Hands is prone to making false allegations. Mr Whiteman also denied making any threats of physical harm to Ms Hands, Mrs Betty Hands, Mrs Bevan or Christopher Hopkins.

21 Mr Whiteman’s current domestic circumstances are that he is the caretaker of a property and lives with his three year old son and his eight year old daughter. He uses his firearms licence to dispose of sick or injured animals on the property. The loss of his licence would put in doubt his employment as a caretaker.

22 Ms Hands has regular access to the two children and Mr Whiteman described their relationship as “as good as it’s ever been.” Mr Whiteman said he is on speaking terms with Christopher Hopkins.

23 Sergeant Causer provided a statement expressing the view that “based on my operational policing experience and my knowledge of the parties from the records maintained by the police service I believe there is a reasonable prospect that this domestic violence situation will continue. . . . the domestic history and allegations of numerous threats lead me to have concerns from an operational police and public safety perspective of the availability of firearms to the applicant and other parties if they are not stored properly.”

Findings of fact

24 Police have been called to incidents involving Mr Whiteman ten times in the last six years. He has been the subject of three applications for AVOs (one revoked by Ms Hands) and four allegations that he threatened a person with physical violence or death. Mr Whiteman has admitted being involved in heated arguments on several occasions. Although I am unable to make detailed findings about precisely what occurred in relation to each incident, the overall history is that Mr Whiteman has been involved in regular and sometimes bitter domestic disputes over several years.

25 The relationship between Ms Hands and Mr Whiteman is a volatile one. The COPS events also contain comments by police officers in relation to the ongoing nature of the dispute, the ‘tit for tat’ complaints and that Mr Whiteman and Ms Hands would do anything to “get the other back.”

Commissioner’s submissions

26 The Commissioner submitted that it does not matter who is to blame for these domestic disputes, the fact is that Mr Whiteman has been involved in heated arguments and threatened people with whom he has ongoing contact.

27 The Commissioner submitted that given the history of domestic related incidents and misuse of firearms it is not in the public interest for Mr Whiteman or any other person with whom he associates, to have access to firearms.

28 Most of the incidents involve Mr Whiteman’s former partner and her de facto partner, mother and grandmother. The police are not relying solely on Mr Whiteman’s failure to store a firearm safely or his possession of an unregistered firearm.

29 Although the Commissioner did not submit that Mr Whiteman is not a fit and proper person to have a licence, his character is nevertheless relevant to the question of public interest.

Applicant’s submissions

30 Mr Whiteman says that he has been harshly judged and that he has never threatened anyone or behaved aggressively. While interim apprehended violence orders have been taken out, none has become permanent. Mr Whiteman alleges that Mr Hopkins is a violent person and that he lied to police about threats. Mr Whiteman pointed out that the people who have alleged that he threatened them or others are all members of the same family.

Reasons and decision

31 Principles of the Act. 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.

32 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 . . .”

33 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.

34 In Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (23 March 2000), I 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.

35 Several Tribunal decisions have dealt with the issue of revocation of licences in relation to people involved in domestic disputes. In Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (23 March 2000) this Tribunal set aside the Commissioner's decision to revoke Mr Ward's licence. Mr Ward was convicted of assaulting his partner and fined $1000. The fact that Mr Ward had never been convicted of any other offences involving violence; had attended counselling and has shown genuine remorse and determination not to re-offend; were factors taken into account by the Tribunal in setting aside the Commissioner's decision. In addition, Mr Ward had experience in the possession and use of firearms and in teaching others to use firearms.

36 In Coates -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 56 the Tribunal refused Mr Coates’ application for a firearms licence. Like Mr Whiteman, Mr Coates had never been convicted of a criminal offence. However the Tribunal found that he argues frequently with his wife and that physical force is sometimes involved.

37 In Fielden & Fielden -v- Commissioner of Police, NSW Police Service [2000] NSWADT 156 the Tribunal affirmed the Commissioner’s decision to revoke the firearms licence. Police had been called to the Fielden residence on three occasions between 1996 and 1999. Mr Fielden and his son had a particularly stormy and difficult relationship and the son had been behaving violently on at least one occasion when police were called. The father had failed to take appropriate action in relation to the son’s behaviour and four unregistered guns were found in the house.

In this case, I find that Mr Whiteman has a history of involvement in domestic disputes, many of which were characterised by threatening and abusive behaviour. He has also been found guilty of failing to store a firearm in accordance with the legislative requirements. This combination of factors persuades me that it is not in the public interest for him to continue to hold a firearms licence.