Whittaker and Commissioner Of Police - [2008] WASAT 299

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: WHITTAKER and COMMISSIONER OF POLICE [2008] WASAT 299

MEMBER: MR P McNAB (MEMBER)

HEARD: 23 SEPTEMBER 2008

DELIVERED : 16 DECEMBER 2008

FILE NO/S: CC 10 of 2008
CC 11 of 2008

BETWEEN: DAMIEN SCOTT WHITTAKER
First Applicant
XYZ
Second Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms licensing - Gun control - Handguns - Status as concealable weapons - Licensing regime stricter as regards handguns - Applicants for firearms licences were partners who lived together - Character of applicants - Whether applicants 'fit and proper persons' - Genuine need established for recreational shooting with sports club - Male applicant's past membership of outlaw motorcycle gang - Whether female partner could be adversely affected as to character by partner's former membership of gang - Characterisation of gang as quasi-criminal enterprise - Whether public safety at risk - Tribunal holding that association with male partner by itself insufficient to impugn character - Female applicant convicted of assaulting female police officer - Offences of violence specifically noticed by legislation - Male applicant found not to be of good character because of past membership of gang - Insufficient acknowledgement by male applicant of gang's misdeeds - Female applicant found not to be of good character because of circumstances of assault and lack of insight - Applications for review dismissed - Future prospects for approval - Words and phrases: 'fit and proper person'

Legislation:

Crime and Corruption Commission Act 2003 (WA), s 72
Criminal Code (WA), s 318(d)
Criminal Property Confiscation Act 2000 (WA), s 76
Firearms Act 1973 (WA), s 4, s 11, s 11(3)(a), s 11A, s 11B, s 11c, s 19(4)(a), s 23
Firearms Regulations (WA), reg 6A, Sch 3
Sentencing Act 1995 (WA), s 45
State Administrative Tribunal Act 2004 (WA), s 31

Result:

The applications for review are dismissed
The decisions under review are affirmed

Category: B

Representation:

Counsel:

First Applicant              :     Mr J McGrath
Second Applicant          :     Mr J McGrath
Respondent:     Mr B King & Mr P Wayte

Solicitors:

First Applicant              :     Michael Tudori & Associates
Second Applicant          :     Michael Tudori & Associates
Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

Anderson and Commissioner of Police [2008] WASAT 75
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bakker and City of Nedlands [2005] WASAT 106
Berry-Porter and Commissioner of Police [2007] WASAT 212
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [No 2] [2008] WASC 166
Lobley v Commissioner of Police (2005) 42 SR (WA) 195
Re Antoine Redondo and Commissioner of Police [1989] AATA 15
Re Brown; Ex parte Scudds (1995) 14 WAR 270
Re G Hollands and Commissioner of Police [1981] AATA 36
Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr D Whittaker and Ms XYZ (the applicants) were partners, living together in one of Perth's northern suburbs. They both expressed an interest in recreational shooting with handguns and were members of a recognised sporting shooters' club.
Handgun possession, ownership and use are strictly regulated in the State of Western Australia. Amongst other things, the legislation required an applicant to be a 'fit and proper person' to hold a licence.
The Commissioner of Police refused both applicants a firearms licence to possess a handgun based upon public safety concerns, but particularly on grounds of alleged poor character. In Ms XYZ's case, it was further alleged that she had poor character because of her association with Mr Whittaker.
In Mr Whittaker's case, he had been a longstanding member of an outlaw motorcycle gang (the Coffin Cheaters). The Tribunal described that organisation as a 'quasi-criminal subculture with a particularly cavalier, intimidatory and lawless attitude, underpinned by actual or threatened violence'. This conclusion was reached in part based upon the findings in a previous Tribunal decision involving the same gang.
Mr Whittaker had in fact left the Coffin Cheaters in 2006. In Ms XYZ's case, she had been convicted in late 2006 of an offence of violence, namely the assault of a female police officer during an organised crime investigation. This was her only relevant conviction. She received a fine and a spent conviction. The relevant legislation controlling firearms especially singled out such convictions for special consideration.
The Tribunal considered that it should follow a previous Tribunal decision that had the effect of limiting any prejudice to Ms XYZ simply by reason of her association with Mr Whittaker. Here, there was no evidence that Ms XYZ was in any way relevantly connected to the Coffin Cheaters or that she would simply act as an agent for Mr Whittaker.
After reviewing all of the evidence the Tribunal concluded that it could not be said that either of the applicants were 'fit and proper persons' to hold a licence. Mr Whittaker did not directly acknowledge the Coffin Cheaters' reputation (but did admit to being engaged in various acts of violence) and showed no real remorse for its activities. Ms XYZ's conviction revealed that she had behaved immaturely, with some violence and irrationality, by kicking an officer without any justification. (She had however expressed regret for her actions pointing out the stress that she had been under in the circumstances of her detention by the police.)
This was not to say, however, that either applicant was beyond redemption. Mr Whittaker appeared to have turned over a new leaf and had become, by all accounts, a law-abiding citizen, having no contact with either the Coffin Cheaters or various persons of notoriety. Ms XYZ's conviction seemed to be out of character, and although serious, it seemed likely to be of a oneoff nature. They both had stable employment and a stable relationship, and were further integrating into mainstream society. With the passage of time, either or both of them might qualify under the character test.
The applications for review were dismissed and the decisions of the Commissioner of Police were affirmed.
Having regard to s 14(3) of the Spent Convictions Act 1988 (WA), and the requirement that a tribunal shall take such steps as are reasonably necessary to avoid or minimise publication of evidence concerning spent convictions, these reasons have been published showing the second applicant as 'Ms XYZ' throughout and otherwise minimising identifying material. In addition, the names of certain incidental third parties, not present during the hearing, and matters (including ongoing matters) relating to them have also been omitted at the request of the respondent Commissioner and with the consent of the applicants.

Introduction

On 12 December 2007, Darren Scott Whittaker (Mr Whittaker or first applicant), who is the first applicant in these proceedings, received written advice (dated 26 November 2007) that his application, dated 23 February 2006 (actually 28 August 2007), for a firearm licence had been refused by the Commissioner of Police (Commissioner). Mr Whittaker had sought a licence for a specified .38 calibre selfloading handgun. The possession in Western Australia of such a firearm without the authority derived from a law of the State or a valid law of the Commonwealth would be an unlawful act.
On 12 December 2007, Ms XYZ (or second applicant), received written advice (dated 26 November 2007) that her application, dated 28 August 2007, for a firearm licence had also been refused by the Commissioner. Ms XYZ had also sought a licence for a .38 calibre self‑loading handgun. The serial number of that gun is different to the serial number of the firearm sought by Mr Whittaker.
Mr Whittaker and Ms XYZ are partners who live together, and have been in a relationship for about six years. Both parties have sought a review of these respective (and related) decisions of the Commissioner. Both parties were represented by the same counsel. As appears with more particularity below, the factual substratum of both reviews overlaps considerably and the Tribunal has heard and determined both reviews together.
The applications for review of the above decisions were made to this Tribunal on 7 January 2008. However, both parties consented to various adjournments pending the resolution of the Tribunal's review in Anderson and Commissioner of Police [2008] WASAT 75 (Anderson).
In Anderson, the Tribunal, constituted by the President of this Tribunal (Barker J) and two other Members, had to consider the revocation of the applicant's (that is, Ms Anderson's) firearm licence for two reasons: first, her conviction and fine for possession of a prohibited drug, and secondly, 'her association with a member of an outlaw motorcycle gang known as God's Garbage [where the] applicant had been for some time in a relationship with a senior member of God's Garbage'. The Tribunal there set aside the revocation and reinstated the licence upon certain conditions.
Consequently, Ms XYZ's matter was, in early May 2008, sent back to the Commissioner for reconsideration under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 19 May 2008, the Commissioner advised the Tribunal that the original decision had been affirmed.
The matter thus proceeded to a hearing in September 2008.

Handguns under the regulatory framework

It is common ground that such a firearm, as is sought by both applicants, is a 'handgun' within the meaning of the Firearms Regulations 1974 (WA), made under the Firearms Act 1973 (WA) (Act). The definition of 'handgun' within the meaning of s 4 of the Act is as follows (emphasis added):
handgun means any lethal firearm and any other weapon of any length of barrel -
(a)which is reasonably capable of being carried or concealed about the person; and
(b)which when used can be aimed and fired or discharged from one hand; and
(c)from which any shot, bullet, or other missile can be discharged or propelled, or which, by any alteration in the construction or fabric thereof can be made capable of discharging or propelling any shot, bullet or other missile; …
The Act's preamble includes the following statement of purpose:
An Act to make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with, or manufacturing firearms and ammunition …
Importantly, the definition's emphasis upon a handgun's potential for concealment and utility of operation (for the purposes of weapons classification) are, speaking generally, also reasons for the greater attention given to such weapons in the regulatory context. For example, so far as prosecutions are concerned, see the substantially greater penalty imposed upon a person engaged in the unlawful manufacture of a handgun, as opposed to other weapons, under s 19(4)(a) of the Act (and see also s 23 'General offences', which posits increased penalties for certain offences involving the unauthorised use of handguns).
This differential treatment 'no doubt reflects the principle that handguns, because of their capacity for concealment on a person, are intrinsically more dangerous than rifles'. Re G Hollands and Commissioner of Police [1981] AATA 36 at [11], cited with approval in Re Antoine Redondo and Commissioner of Police [1989] AATA 15, at [8]. This point was noticed by the learned Magistrate who was reviewed in Re Brown; Ex parte Scudds (1995) 14 WAR 270, at 274. So too, Member Hawkins in this Tribunal in Berry-Porter and Commissioner of Police [2007] WASAT 212 at [39]: 'The legislature has imposed a stringent licensing regime in respect to handguns'. This is a matter that the Tribunal will return to below.
I will also return to the statutory framework in more detail later in these reasons.

Reasons for refusal

The stated purpose for the holding of the weapon, in respect of both applicants, was its proposed use in connection with and as an active financial member of an approved shooting club, namely both the International Practical Shooting Confederation (WA) Inc and the Pine Valley Pistol Club Inc.
In refusing Mr Whittaker's application, on behalf of the Commissioner, Detective Inspector D Bell wrote:
I am satisfied for the reasons listed below that it is not desirable in the interests of public safety for this firearm to be licensed to you. My decision is made under [ss 11(1)(b) and (c) and s 11(3)(c) of the Act].
1.I have considered your criminal antecedents:
Assault Occasioning Bodily Harm - 1987
Resist Arrest x 2 - 1990
Possess Prohibited Drug - 1986
Possess Prohibited Plant - 1986
2.I have considered information held by the Western Australia Police alleging your association and involvement with members of a Motor Cycle Gang known as the Coffin Cheaters.
In refusing Ms XYZ's application, on behalf of the Commissioner, Detective Inspector Bell wrote:
In my opinion you are not a fit and proper person to hold the approval, permit or licence for a firearm [there follows a reference to s 11(1)(c) of the Act].
My decision is based on the following information:
Your recent conviction for Assault Public Officer and your failure to pass the Firearms Safety Awareness test.
Ms XYZ has in fact passed a Firearms Safety Awareness Test, and the record has been accordingly corrected by the respondent.
In the review in this Tribunal, the Commissioner also asserted an associational risk as between Ms XYZ and Mr Whittaker.

The legislative framework

The Firearms Regulations 1974 (WA) (Regulations), so far as are relevant, provide as follows (emphasis added):
6A.Categories of firearms
(1)For the purposes of these regulations a firearm is of the category indicated in Schedule 3.
(2)If Schedule 3 specifies a genuine need test for a particular category of firearms -
(a)an approval or permit cannot be granted and a licence cannot be issued to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm of that category; and
(b)a person cannot be considered to have a genuine need to acquire or possess a firearm of that category unless the test specified in Schedule 3 is satisfied.
(3)…
(4)If, for a particular category of firearms, Schedule 3 specifies any restriction on the grant of an approval or permit or the issue of a licence, an approval or permit cannot be granted and a licence cannot be issued except in accordance with that restriction.
…
Schedule 3 - Categories of firearms
…
Category H
sub-category   description
H1  a handgun (including an air pistol)
H2  …
Genuine need test for category H
(1)The applicant is required to satisfy the Commissioner that a firearm of category A, B [generally, rifles and shotguns], or C [generally, self-loading rifles and shotguns] would be inadequate or unsuitable for the purpose for which the firearm is required.
(2)A person does not have a genuine need to acquire or possess a firearm of category H because it is required for -
(a)hunting;
(b)recreational shooting, other than by a person described in paragraph (a) under the heading 'Restrictions for category H', and for a purpose described in that paragraph; or
(c)destroying stock or vermin.
Restrictions for category H
(1)An approval or permit can be granted or a licence can be issued for a firearm of category H only if -
(a)subject to subclauses (2) to (6), it is for a firearm of category H1, and is granted or issued to a person described in section 11A(2)(a) of the Act [reproduced below] who requires the firearm for use as described in that provision for the purpose of training for, and participating in, a club, interclub, State, national, or international shooting discipline; …
(2)An approval or permit may be granted, and a licence may be issued, to a person under subclause (1)(a) only if -
(a)the person has been a member of an approved shooting club for at least 6 months;
(b)if the person has been a member of an approved shooting club for less than 12 months, the approval, permit or licence does not apply to more than 2 handguns being either -
(i)one .177 air pistol and one .22 calibre handgun; or
(ii)one .177 air pistol and one centre fire handgun; and
(c)the person has satisfactorily completed an approved firearm safety training course while being a member of the shooting club.
(3)Subject to subclause (5), an approval or permit may be granted, and a licence may be issued, to a person under subclause (1)(a) only if it applies to a handgun -
(a)that has a calibre of .45 or less;
(b)that is not capable of firing more than 10 rounds without being reloaded; and
(c)that has a barrel length 120 mm or more in the case a semi-automatic handgun and 100 mm or more in any other case, unless the Commissioner is satisfied that -
(i)the handgun has been specially designed for target shooting; and
(ii)the design does not make the handgun easier to conceal than a handgun that has a barrel length of 120 mm or 100 mm, as the case requires.
…
(6)An approval or permit may be granted, and a licence may be issued, to a person under subclause (1)(a) only if it is subject to the condition that -
(a)if the approval, permit or licence relates to one or more handguns in a single discipline - the licensee must use one of those handguns in at least 6 shooting competitions organised by the club for the discipline on different days in each year; or
(b)if the approval, permit or licence relates to at least one handgun in each of 2 or more disciplines - the licensee must use a handgun from each discipline in at least 4 shooting competitions organised by the club for the discipline on different days in each year.
(7)…
So far as is relevant, the Act provides as follows:
11.Exercise of Commissioner's discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that -
(a)to do so would be contrary to section 11A [reproduced below] or regulations under section 11B or 11C [see Regulations above];
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
(2)Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold an approval, permit, or licence.
(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner -
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence -
(i)the person was convicted of an offence involving assault with a weapon;
(ii)the person was convicted of an offence involving violence;
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person, whether in this State or in any other place;
(b)is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence; or
(c)suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety.
(4)…
(4a)The Commissioner is not required under this Act or any other Act or law to disclose information relied on under subsection (3)(c) unless the disclosure is required under the State Administrative Tribunal Act 2004.
(5)The Commissioner may form an opinion that a person is a fit and proper person to hold an approval, permit or licence under this Act in a case in which the Commissioner has a sufficient ground under subsection (3) for forming the contrary opinion.
(6)Subsection (3) does not limit the Commissioner's ability, when forming an opinion as to whether a person is a fit and proper person to hold an approval, permit or licence under this Act, to take into account -
(a)a conviction or order made outside the period of 5 years referred to in paragraph (a) of that subsection; or
(b)anything else that could have been taken into account if that subsection had not been enacted.
…
11A.Genuine reason required in all cases
(1)An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought.
(2)A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if -
(a)it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club;
…
(f)it is for another approved purpose.
(3)A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified.
(4) …
(5)Approval cannot be given under subsection (2)(f) to the possession of a firearm or ammunition for the purpose of personal protection.
(6)Regulations made under [the Act] may limit the purposes that may be approved under subsection (2)(f).
11B.Genuine need required in some cases
(1)The regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category.
(2)The regulations may make provision as to the circumstances in which a person can or cannot be considered to have a genuine need to acquire or possess a firearm or ammunition of a particular category.
11C.Other restrictions
The regulations may restrict the grant, issue, or renewal of licences, permits, or approvals under this Act.

Issues

Much of the essential factual substratum in this review is not in dispute. Thus, the existence of the fact of various criminal convictions is not disputed by the applicants; likewise it is acknowledged that Mr Whittaker was, but has ceased to be (from about April 2006), a formal member of the Coffin Cheaters. However, the impact, effect, relationship and context of these and other facts is a matter of contest between the parties.
The issues, therefore, to be decided are as follows.
In the case of Mr Whittaker, if he has a 'genuine need' for the firearm sought, does his 'association and involvement with members of [the] Motor Cycle Gang known as the Coffin Cheaters' or his criminal history, or both, mean:
a)that 'it is not desirable in the interests of public safety' for him to be the holder of a firearms licence; or
b)that he 'is not a fit and proper person' to be the holder of a firearms licence (or both).
In the case of Ms XYZ, if she has a 'genuine need' for the firearm sought, does her association with Mr Whittaker or her conviction for assaulting a public officer (assuming that that she has been 'convicted of an offence involving violence'), or both, mean:
a)that 'it is not desirable in the interests of public safety' for her to be the holder of a firearms licence; or
b)that she 'is not a fit and proper person' to be the holder of a firearms licence (or both).
In relation to both applicants, Mr King, counsel for the Commissioner, concedes, after reviewing the evidence given at the hearing (including that of Mrs D Stefani, a member of the Pine Valley Pistol Club and a National Chief Range Officer) that a 'genuine need' within the meaning of the Regulations had been made out as there is sufficient evidence of a purpose 'of training for, and participating in, a club, interclub, State, national, or international shooting discipline'.
Mr J McGrath, counsel for the applicants, conceded that Ms XYZ's conviction was, on its face, one capable of being characterised as 'an offence involving violence'.
Both concessions were properly made.
Further, as I understand the Commissioner's case, so far as Ms XYZ is concerned there is no pressing of the 'public safety' aspect of her case (so far as she individually is concerned), but the argument is maintained in respect of Mr Whittaker and, if permitted, against her by way of her association with Mr Whittaker.
I have already mentioned Anderson. No appeal has been brought from that decision. There are some factual parallels between that case and this, and hence the SAT Act s 31 reconsideration referred to above in relation to Ms XYZ's position. There, Ms Anderson was the partner of ('happen[ed] to live [with]') a senior member of the God's Garbage motorcycle gang. They had both been caught in a combined police and Customs raid on suspect premises, and evidence of drugs and cash (and a resulting conviction) were submitted as proof of poor character or risk. However, the Tribunal noted, after reviewing all of the evidence, that concerns about the applicant were ultimately 'speculative' (at [168]). There was, like here, no evidence suggesting a relevant or direct link between Ms Anderson and the God's Garbage motorcycle gang.
The actual result in Anderson, so far as 'association' issues are concerned, appears to be the elevation of three important principles (or approaches) of the common law above regulatory concerns (even in the important area of statutory firearms control). These appear to be: that there ought to be no unnecessary guilt by association; no necessarily adverse consequences based upon mere suspicion; and, relatedly, no unjustifiable discrimination based upon one's spouse's or partner's character or associations. Whatever the position would have been had the slate been clean (and therefore Anderson had not been decided, or decided differently), I ought now to follow the reasoning and approach of Anderson because of the matters that I mentioned in Bakker and City of Nedlands [2005] WASAT 106, at [25] - [26]:
It has been said that while 'consistency in decision making is generally desirable, there is no obligation on a Tribunal member to consider every previous decision of [a] Tribunal and give the weight to each decision that would be given to a judicial precedent': NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335, at [66], per Beaumont J. Nevertheless, it has also been observed in Australian Telecommunications Commission v Zanicotti, unreported; Fed C of A (Davies J) 18 December 1986, at 17 18, that:
'The function of a tribunal as constituted for a particular case goes far beyond the ascertainment and application of the legal rules applicable to the case. Consistency in the application of any legal or administrative standards, that is to say, fact evaluations, is just as important.'
Additionally, the AAT in Re Secretary, Department of Social Security and Lea (1993) 31 ALD 789, at 798 said that it was 'mindful of the need for consistency in decision-making on [its part] unless it is convinced that a particular decision or line of authority is wrong or there is a sound basis for distinguishing one case from another'; citing Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 639. (See also the useful discussion in Pearce, Australian Administrative Law at [273A] 'Precedent and AAT decisions').
Mr King did not abandon the 'association' argument, noting that Anderson was a case involving a rifle, and not a handgun, and a case that resulted in approval with a very limited restriction upon use. Mr McGrath noted that Ms Anderson was found to be independent-minded and was not likely to be relevantly influenced by her partner; findings, he submitted, that would be, in any event, open to be made here as regards Ms XYZ.
However, in the Tribunal's view, and notwithstanding the distinction already drawn as between the regulation of handguns and other firearms, the principle emerging from Anderson means that Ms XYZ must be judged without prejudice as regards her partner's activities where they are, as here, relevantly unconnected with her. There is no evidence that Ms XYZ had any relevant dealings with or knowledge of the Coffin Cheaters, apart from her personal connection with Mr Whittaker and what she might have gleaned along the way. There is no evidence that she is or was simply the agent or cipher of Mr Whittaker.
Accordingly, the case against Ms XYZ must boil down to whether she was a fit and proper person in the light of her conviction and its circumstances. Nevertheless, I should add that Ms XYZ's connection with Mr Whittaker and related matters, for instance, employment at ZA (see below), all form part of the factual matrix in which decisions must be made.
Finally, I note that it is not asserted or suggested that Ms XYZ 'has a history of, or a tendency towards, violent behaviour' (and indeed there is no evidence to this effect), but rather that 'within the period of 5 years before [Ms XYZ] applie[d] for [her] licence … [she] was convicted of an offence involving violence'.

Commissioner's case against Mr Whittaker

The Commissioner's case against Mr Whittaker was that:
1)He was a 'former patched member of the Coffin Cheaters outlaw motorcycle gang'. He was a member for some 13 years, from July 1993 until about June 2006. Further, it was alleged that Mr Whittaker held a senior position in the Coffin Cheaters (the 'sergeant-at-arms').
2)That organisation is, in large part (but not exclusively), a criminal gang or criminal enterprise.
3)He has eight convictions over the period 1986 - 1990. These are mainly for summary offences, traffic and relatively minor drug matters - all of which offences attracted the imposition of fines, the maximum of which was $400 for a traffic offence in 1987. There is one conviction, now spent, for assault (from 1987) carrying a fine of $150.
4)He is, or has been, an associate of the following persons of varying degrees of notoriety, all of whom have criminal records (and, in some cases, are persons facing further serious charges): AB; CD; EF; GH; IJ; KL; MN; OP; QR and ST. The criminal records of all such persons were produced.
5)The Coffin Cheaters have or have had an allegedly improper financial relationship with one UV and his North Perth establishment ZA, and that Mr Whittaker worked as an assistant manager there from 2001 to 2008. ZA appears to be what is colloquially known as a 'strip club'.
In the result, the Commissioner did not seek to agitate the alleged ZA connection, and the Tribunal has not had regard to it - except as a background fact that gives some context to the subsequent conviction of Ms XYZ for assault, an event which occurred during an investigation connected with ZA and UV.
Senior Constable BT Marron outlined the history and organisation of the Coffin Cheaters, including an allegation (based on material seized in searches of Coffin Cheater premises) that Mr Whittaker commenced membership of the 'Perth Coffin Cheaters Chapter' in July 1993. Amongst other things, he produced a photograph seized in April 2003 showing Mr Whittaker 'in company with' Messrs EF, CD, ST and AB. Various other alleged incidents and associations are referred to by Mr Marron - none of which have led to any criminal charges against Mr Whittaker. (One of these was a traffic incident where it was alleged that Mr Whittaker appeared to be 'minding' Ms XYZ and another woman.) Senior Constable Marron conceded in cross‑examination that some members of 'outlaw motorcycle clubs' held firearms licences, but he was not sure of what types of firearms were involved.
Detective Senior Constable T Hagan told the Tribunal of an investigation (an 'unexplained wealth inquiry' under the Criminal Property Confiscation Act 2000 (WA) (CPC Act)) concerning UV and ZA. (A brief concerning UV went to the Director of Public Prosecutions in May 2007.) Mr Whittaker appeared to have been employed at that establishment in some capacity from August 2000 (when he was drawing wages of $1,000 per week).
It seems common ground that Mr Whittaker became a bank account signatory, then marketing manager and then business manager of ZA, working there from February 2001 until about April 2008 when licensing concerns meant that he could no longer work there. He still operated his own business as well. Ms XYZ worked there from early 2004 to March 2008 in the capacity of an office administrator, fulltime and then parttime, having previously worked there serving food.
A series of interrelated events occurred on 12 June 2006 involving ZA. These included a search of its premises in North Perth (at which Mr Whittaker attended), the detention of Ms XYZ and a subsequent search of Mr Whittaker's and Ms XYZ's shared residence. The detention of Ms XYZ, on her way to work, led to her assault conviction.
Also of some relevance to this matter are the findings of this Tribunal in Wignall and Commissioner of Police [2006] WASAT 206 (Wignall). At [314], the Tribunal there said (emphasis added):
To attempt to summarise our views and concerns in this regard, the evidence we have heard about the organisation and operation of outlaw motorcycle gangs such as the Coffin Cheaters, and the personal misconduct and criminal records of many of the members of the Coffin Cheaters, including the applicant, leave us in real doubt that the community would feel safe if the Commissioner, or the Tribunal on review, were to grant the applicant, who is a member of the Coffin Cheaters, a licence to hold a number of - indeed, any - firearms.
See also, Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[No 2] [2008] WASC 166 (Gypsy Jokers Motorcycle Club Inc) where similar material appears, for example, at [59] and [60]:
Law enforcement agencies throughout Australia have had longstanding concerns about particular motorcycle gangs, including the [Gypsy Jokers]. … Australian law enforcement agencies have also compiled significant intelligence with regard to the structure and underlying culture of outlaw motorcycle gangs …
Such concerns are, in part, the premise for the enactment of legislation such as s 72 of the Corruption and Crime Commission Act 2003 (WA), dealing with 'fortification removal notice[s]' (considered in Gypsy Jokers Motorcycle Club Inc and related litigation). Similar material appears in Anderson: see, for example, at [50].
However, it should be emphasised that it is not suggested by anybody that Mr Whittaker is anywhere near in the same league as Mr Wignall, who had, for example, a serious criminal record including some years spent in prison and was still an active member of the Coffin Cheaters.
Such material paints a generally disturbing picture of a rather unique quasi-criminal subculture with a particularly cavalier, intimidatory and lawless attitude, underpinned by actual or threatened violence. According to the evidence, and confirmed by Mr Whittaker, the club's badge is 'DEFWAC' which, it is said, stands for 'Don't Ever F … With a Cheater'. The organisation, by all accounts, lives up to the colloquial meaning of its motto.
Considering the material put before me, the Tribunal is entitled to have regard to findings of this nature in coming to a conclusion about the organisation with which Mr Whittaker was associated for such a very long time, and, it appears, at a senior level.

Commissioner's case against Ms XYZ

As has been mentioned, the case against Ms XYZ is basically confined to the circumstances of her conviction in November 2006.
The Tribunal has viewed a DVD recording of Ms XYZ's detention on the early morning of 12 June 2006 on the side of the Reid Highway at Malaga, and the events leading up to her assaulting a police officer shortly thereafter. Ms XYZ declined to view the DVD recording for this review. The recording appears to start a few minutes after Ms XYZ was pulled over by the police.
The Tribunal has also had the benefit of the police précis of facts tendered to the Magistrate and an informal transcript of an extract from the DVD (prepared by Mr King) which, it was agreed, gives a fair representation of the material exchanges that took place on that morning. Detective Senior Constable G Mungall's statement about the incident has also been received by the Tribunal.
On 23 November 2006, Ms XYZ pleaded guilty to a charge of assaulting a public officer (namely the female detective sergeant who was questioning her on the roadside), contrary to s 318(1)(d) of the Criminal Code (WA). That provision, as then in force, was as follows:
(1)Any person who -
…
(d)assaults a public officer who is performing a function of his office or employment or on account of his performance of such a function; …
is guilty of a crime, and is liable to imprisonment for 10 years.
At the time of conviction, the maximum summary conviction penalty was imprisonment for three years and a fine of $36,000.
Ms XYZ was fined $600 and given a spent conviction under s 45 of the Sentencing Act 1995 (WA). So far as is relevant, that provision is as follows:
(1)[A] court sentencing an offender is not to make a spent conviction order unless -
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to -
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
The learned Magistrate did not have the benefit of the additional material given to this Tribunal which fully explains the circumstances and context of the detention and subsequent arrest. If the material had been supplied to the Magistrate it is, of course, a matter of pure speculation whether there would have been any change in penalty.
The investigation that led to this incident was being conducted under the CPC Act and Ms XYZ was cautioned from the start that she was required to answer certain questions put to her: cf s 76 of the CPC Act. Her bag, her vehicle and then her residence were all searched in connection with this investigation. The searches were authorised by warrant.
As has been mentioned, Ms XYZ had worked at ZA from early 2004 as a fulltime, then parttime, office administrator.
On the morning of 12 June 2006, Ms XYZ was on her way to start work in a new job. She was justifiably displeased at this intrusion into her schedule and what it might do for her immediate employment prospects. Ms XYZ accused the officers of deliberately arranging the event. Several officers were involved in the incident. She became increasingly upset and uncooperative, verbally abusing the officers, and eventually the following incident occurred (according to the précis, emphasis added):
The victim [that is, the female Detective Sergeant in uniform] was holding the accused['s] car keys attempting to establish which keys belonged to the accused['s] home address when the accused snatched the keys from the victim['s] hand. At the same time the accused made contact with the victim['s] left chest area with her right hand. Another officer present attempted to remove the keys from the accused however she began to struggle and resist. The victim has attempted to remove the keys from the accused. The accused has kicked out with her right leg hitting the victim to the upper leg/groin area. The accused was restrained and handcuffed … The victim suffered minor cuts to her hands whilst restraining the accused but no injuries as a result of the assault.
Ms XYZ's version of events, which in parts is contrary to or inconsistent with this (and the DVD version), is fully set out below. Where the versions of the event vary, I accept the police version of the incident, which is clearly recorded and with which Ms XYZ must be taken to have agreed in connection with her plea. Even allowing for the fact that the first few minutes of the incident are not available on tape, and it is always possible that Ms XYZ was faced then with confusion and shouted instructions, very soon thereafter events proceeded, at least on the police side, in an orderly and calm fashion.
Despite Mr McGrath's measured submission that 'it could have been handled better by the officer, when she [took] the keys, of physically restraining [Ms XYZ]', I am satisfied, based on the material above, that the police behaved professionally and with courtesy in this incident, and exercised reasonable restraint in connection with Ms XYZ's initial detention and subsequent arrest. On the material available, no formal complaint has been made about their conduct, nor do I think that there could be one made.
Moreover, the officers calmly and with precision explained the circumstances of the detention and Ms XYZ's duties. Ms XYZ either did not appear to fully appreciate what was happening to her, or, more likely, she chose not to listen to the explanations and questions directed at her, most probably because she was angry at the inconvenience and disruption that she was experiencing. However, her retort immediately after her arrest ('You've got the wrong f… people. You're after the wrong people') suggests that she had absorbed some of what was happening.
On the face of it, for Ms XYZ to assault and abuse a police officer in uniform (without the slightest provocation on that officer's part) in the middle of a serious investigation, a matter or status that had been clearly communicated to Ms XYZ, suggests that - at least as at mid2006 - not only a problem with general maturity and respect for law enforcement officers, but also a problem with 'character' relevant to this inquiry.
I will return to this matter below.

Mr Whittaker's case

Mr Whittaker is 42 years old and commenced work as a mechanical fitter. He has been in fulltime work all of his working life and has upgraded his qualifications over time. He now owns his own hire business. So far as is relevant, in his witness statement, Mr Whittaker told the Tribunal (emphasis added):
19.I ceased being a member of the Coffin Cheaters Motorcycle club ('the motorcycle club') in April 2006 of my own free will.
20.I subsequently instructed my solicitor [Mr M Tudori] to write to the Commissioner of Police to ensure that the police were aware that I had left the motor cycle club and had no involvement with the club. [This letter has been produced.]
21.During my membership of the motorcycle club I never committed any offence.
22.I considered the motorcycle club to be my social interest.
23.Whilst a member of the motorcycle club I was fully employed with outside work. It is wrong to assert that my job was being a member of a motorcycle club.
24.I never held the title of Sergeant of Arms within the motorcycle club. I did act as the liaison officer between the motorcycle club and the police.
25.In the Respondent's Statement of Issues, Facts and Contentions it is stated that a large proportion of the members of the motorcycle club have been convicted of criminal offences. I did not know what convictions, if any, a member of the motorcycle club held. This is private and confidential personal information and as such was not a matter to be discussed as a part of club business. When I was a member of the motor cycle club other members did not ask me what the nature of my spent convictions was. If someone at the motorcycle club had asked me what I convictions I had as a young man I would have told them to mind their own business. That is my business. In turn I would never have asked any member of the motor cycle club (or any person who was not a member) whether they had any convictions (spent or otherwise).
26.In the Respondent's Statement of Issues, Facts and Contentions there is a culture of the motorcycle club described. That is not the culture of the club as I understood the club. Throughout my membership of the motorcycle club I never committed any offences.
27.Given that I have now left the motorcycle club of my own free will, I have had no further involvement with the club or any of its members. This is a chapter of my life that I have closed and a door that I intend to never reopen.
28.Given that I have left the club I no longer have any knowledge of the membership of the motorcycle club or even the current constitution of the motorcycle club. I do not accept as stated in the Respondent's Statement that I am required to assist the motorcycle club. Like most organizations when you leave - you are out and not really welcome to return.

Mr Whittaker said that he had had, to the best of his recollection, no contact with various named individuals of notoriety for some two and half to three years.
In crossexamination by Mr King, and in answers to questions from the Tribunal, Mr Whittaker gave evidence as follows about the following material matters (emphasis added):
•About rejoining the mainstream after 16 years with the Coffin Cheaters:
Well, I was hanging - from start to finish I was involved with the Coffin Cheaters for 16 years and like anything, when you come out of an institution you - I'm not sure rehabilitation would be the word, but fitting back into mainstream and understanding when you've - you know, when you're head has been in one spot and you have one chain of thought. Fitting back into mainstream, I'd say, would be more the correct answer.
•Concerning the past and 'moving on':
… And it's the past and I really don't want to delve into the past because I've shut that door, but I could have come here with 16 years of conflict, innuendoes and mudslinging that I've seen on the other side of the law.
[Mr King]: From police, you mean? --- Correct. All walks of life. So there is conflict there and I've moved on. So that's no longer a part of my life.
Do you understand that the [C]ommissioner of [P]olice's position is that particularly because of your involvement for 16 years with the Coffin Cheaters that you're not fit and proper to have a firearms licence? --- Yes. I understand his stance, but at the same token I've moved on.
•Concerning his role as police liaison officer, the allegation that he was the sergeantatarms and whether he observed any illegal activities:
… And it's been over two and a half years now [since I left]. I haven't had a conviction in 18 years, and when I was in the club for, like, six years, I was a police liaison officer where they didn't mind ringing me every time there was a problem, to help sort problems out. And I took that role on because I had no convictions, and I was mature to both sides of the standing. So I understand what the police commissioner's stance is and I fully expect that, but I'm here today to prove that I've moved on. I've no contact with my past, I have no inclinations whatsoever to have anything to do with my past. I'm trying to move forward with a new life, and this is the one thing [recreational shooting] that me and [XYZ] enjoy doing, and I've met some really nice people out there.
[Mr King:] And if you're a police liaison officer, you would have been a spokesman for the club? --- On the issues between the police and the motorcycle club …
[Y]ou were never - you never had the title of sergeant of arms? --- That's correct.
Was there someone who held that title? --- Not to my knowledge.
Ever? --- Not to my knowledge …
Was there somebody who held that sort of position in charge of discipline at the club? --- Not to my knowledge.
Ever? --- No, because what happens is - one reason I did take the role on as liaison officer, I was completely separated from a lot of things because I was dealing with the police, so a lot of the answers, I'd only be speculating because I was distanced quite - - -
From other activities of the club? --- From just about everything.
But didn't you attend the meetings? --- On general club business, yes.
Weren't the activities of the club discussed? --- Only general activities like the concerts they were putting on or the day-to-day running of the club.
So the specific sorts of activities that might be illegal weren't discussed with you? --- Never.
You understood that they went on, though? --- I'm not sure, I couldn't answer that. I'd be merely speculating, like you would be.
•On the circumstances of his departure from the Coffin Cheaters and whether he was subjected to any violence upon his departure or otherwise:
[Mr King:] Did the [club] constitution require that a member who left the club on bad standing have their club tattoos covered? --- That's correct.
And they had to hand in all the [club] colours, I think? --- You've got to hand in your colours - - -
Anyway, don't you? --- - - - if you leave amicably anyway.
Yes. But if you are leaving the club in good standing, you would have your membership period tattooed under your club tattoos? --- That's at your own discretion. It's not a rule, it's not anything. If you want it, if you want - me personally, I left the club, I covered mine. I don't see any reason to still be wearing them when you've moved on with your life. I don't discuss my past life with anybody.
Isn't that an indication that you left the club on bad standing, then? --- It's funny you should say that, but commercial agents know I left on my own free will, [a named organisation] know I left on my own free - a lot of police officers that I've spoken to, they all know. Everybody knows I left the club. I didn't leave on bad standing. I left the club because I didn't want to be there any more.
Were you ever assaulted about the time you left the club? --- Been assaulted plenty of times.
By club associates or members? --- I've had plenty of assaults in internal club affairs.
Were you assaulted relevant to your leaving the club? --- Not to my recollection. …
All right, can you explain it to me? --- Well, I had personal issues with people.
Yes? --- And what you need to understand - within this culture when you have a personal issue and you have an arm wrestle - it's finished, you move on.
When you mean an arm wrestle - - -? --- People move on.
You mean an arm wrestle in, kind of, a symbolic way? --- Well, a scuffle or whatever eventuates out of it. …
Did you leave the club in good or bad terms? --- I put my hand on this Bible [in the Tribunal], I left the club amicably. I left the club because I wanted to leave the club and the only other real answer you'll get is if you get Coffin Cheater and ask them but I can't see that happening.
But you had some sort of [an] arm wrestle at about that time? --- We had arm wrestles the whole 16 years I was in the club. That's the nature of the game.
… You indicated to us earlier that you had several arm wrestles with ST. What, over the years? --- That's correct.
You say that's just part of the culture? --- That's part of the culture.
Once you've had a tussle, then you just move on the air is cleared, is it? --- That's it.
All right. But according to [certain incidental matters suppressed] ST was set upon by 12 to 15 Coffin Cheaters, and that sources claim he had been kicked out of the game? --- I wasn't in the club so - - -
Do you know anything about it? --- I wasn't in the club so I couldn't speculate.
At the time you left the gang - the club - you said you had some issues with individuals? --- Mm'hm.
Did you ever spend any time in hospital as a result of any assaults or anything? --- No.
•On whether he had been engaged in any external incidents of violence:
[Mr King:] Finally in relation to these newspaper trawlings, [certain incidental matters suppressed].
Do you admit you were involved in that? --- I think I was there, yes, but since then WX and I have sat down and had a cup of coffee and shaken hands and moved on.
You see, the reason that I raise that one is because in one of your statements you say, 'Don't get into altercations in hotels or nightclubs'? --- Well, it wasn't a hotel or a nightclub.
It was on a street, wasn't it? --- It was a street. …
[The Tribunal:] … Can you recall what that [incident] was about? Why did you have an altercation? --- A conflict of - from what I remember a conflict of opinion which - heated.
Right? --- Like two pit bulls in a ring. Went head to tail and then licked our tails and went on our way.
[Certain incidental matters suppressed]. It was just a rumour.
Right? --- Some rumours going around which probably needed to be cleared and turned out to be false.
Right? --- A real waste of time.
Okay. Well, putting aside when you might have had - as you described them - the arm wrestles in the club, these sorts of altercations in the street - - -? --- Mm'hm.
Was that an unusual event or - - -? --- Very unusual but understanding as well WX is his own man too, you know.
All right? --- He's a stand-up fella and he resolves issues his own way and moves on as well.
Right. So are you saying it was self-defence or - - -? --- Well, really it was a heated debate that just - - -
Got out of control? --- Got out of control.
All right. So there were no charges? --- No charges laid.
•On the vast gulf between Mr Whittaker's understanding of the culture of the club and the findings of this Tribunal in, say, Wignall:
[The Tribunal:] … You'll see in that decision of the tribunal [Wignall], after a long hearing the judge there … made a number of adverse findings about the culture of the club? --- Yes.
They were pretty damning in some way[s]. They were not good. Now, you've said, 'Look, that's not my view of what happened and it's not my understanding.' That's correct, isn't it? --- That's correct.
But how do you reconcile that. You've got a number of findings based on intelligence after a full hearing and Mr Wignall lost out in that matter because of those things - - -? --- Yes. I know.
- - - because of his association. He was in a different position from you. I understand that … [b]ut just concentrating on the findings about the club and its culture, what do you say when a decision maker which includes the commissioner of police or, on review, this tribunal is faced with those findings and you're [in stark denial]. I mean, they seem to be in total contrast? --- Well, intelligence is raised from a lot of shaky places.
Yes? --- A lot of intelligence is surmised - submissions. Surmised and guess work, because if it was true - a lot of what they said - everyone would be charged and locked up.
Yes? --- Well, that's my philosophy on it. There is good and bad in every club, whether it be a football club or whatever. There's good and bad persons everywhere. I don't have a criminal record for 18 years. If that doesn't - that, to me, stands to show.
Yes? --- I took the role on that I took on [police liaison] because I wanted a balance. To create a balance which caused me - believe me - my own issues because I was right on the line.
Yes? --- You know?
But that seems to suggest that you were worried about things. That something - - -? --- Well, no. Back in them days there was a lot of provocation.
Right? --- There was - you know, when things got heated there was provocation on both sides of the fence.
Do you mean between the police and the club? --- That's right. That's correct. You know what I mean? My aim was to stop the provocation. You've got a job to do, he's doing wrong, do what you got to do. Let's not provoke each other and cause unnecessary - that was my whole angle on it.
•Concerning the activities of persons of notoriety, and whether they were ever associates of Mr Whittaker:
[The Tribunal:] … You've given sworn evidence [that] you haven't seen them for a long time? --- That's correct.
Two and a half years or longer. What's your reaction to the string of charges these people have faced and/or their previous criminal records. What's your reaction to the character of those people? --- That's their personal life and I'm not interested in their personal life and if you - when they say you're an associate or you hung around and that - if you actually weighed up over the 16 years how much time I'd actually spent with them individually, you'd probably narrow it down to hours. You know what I mean? Or a couple of days. If you worked it out on a hourly thing. They weren't part of my culture. Yes. I'm not denying that I knew them.
Yes? --- And no problems. I was at the boxing and places with them, because they had the same sort of interests. Whatever.
Yes? --- I was certainly not involved with any of their activities.
Did those - - -? --- I wasn't interested in their activities.
Did those activities worry you? --- Lots of things worried me. You know what I mean? That's why I got to a point in my life where I've taken a different stance.
You've never been punished for that? --- No. Not at all. There is nothing in the rule book that says you can't move on and you'll find there is more than me that have moved on. I'm the only one who's applied for a firearm licence …
Mr Whittaker was also asked about his home CCTV security cameras (nine of them), his two Rottweiler dogs and an axe handle that he sometimes kept behind the front door. Mr Whittaker explained the reasons that he had such systems of security or reassurance at his residence, which he suggested was not out of the ordinary given crime rates in Perth nowadays.
Finally, Mr Whittaker spoke about the incident involving his partner on 12 June 2006 and the effect of the arrest on her, and his hopes for the future:
My girl [Ms XYZ] regrets what happens, but she's scarred deeply from that day. Like, the next day I had to follow her to work. She was too scared to leave the street and, like she said, unless you're 22 years old and there and go through that - it's quite intimidating. You know what I mean? … So you know, I believe I deserve a chance. It's a joint thing that me and XYZ are doing [the proposed recreational shooting]. I can only give my word. I stand by what I say and I have moved on, and I have no intention of turning - turning around. I'm actually looking for better things to move forward.

Ms XYZ's case

Ms XYZ told the Tribunal that she had TAFE qualifications and had held various jobs (sometimes simultaneously) in office administration. Currently, Ms XYZ is a senior payroll officer at ZB in Perth, and has held that job since October 2006. So far as is relevant, in her witness statement, Ms XYZ told the Tribunal (emphasis added):
20.On 23 November 2006 the presiding Magistrate ordered that a spent conviction order be made forthwith in respect to the charge pursuant to section 45 of the Sentencing Act 1995. My recollection is that the Magistrate made the order that the conviction be spent because of the trivial nature of the offence and in recognition that given that I have no record he found that I would not commit any offences in the future.
21.The events leading to the conviction involved me being pulled over as I was driving to work prior to 8.00 am in the morning on Monday, 12 June 2006. I was approached by an officer who said that they were from the triple c ['CCC' - Corruption and Crime Commission of Western Australia]. I did not know what that meant and it was not explained to me.
22.I asked whether I was under arrest and was told no. I therefore wanted my keys back - they were not being seized and I was not under arrest. I therefore took the keys back from the officer. I did not snatch the keys[,] I took them from the officer[s'] hand. I wanted to go to work as this was my first day at a new job at [[ZC], her new employer]. I was extremely worried that I would be unable to get to the first day of work and that I would lose my employment.
23.The officer then grabbed at me - restraining my arm. It was extremely aggressive.
24.I was becoming distraught. I wanted to walk away but an argument broke out. When I was grabbed I resisted.
25.It was never explained to me why I was pulled over. I very much regret the incident (which is the only time that I have been convicted of an offence). However, the incident must be looked at from my point of view - it was out of character but arose from me becoming overwrought and bewildered by being pulled over early in the morning when I had not done anything and after the officer restrained me after I took my keys.
26.I have not been in any trouble since that incident.
Ms XYZ was extensively crossexamined by Mr King on the circumstances of the incident of 12 June 2006. It is unnecessary to set out that examination at any length. Suffice it to say that Ms XYZ maintained that she was not at fault, that she was a distressed 22‑year‑old and did not quite know what was happening to her, and that she did not intend to assault the officer. Rather she was 'lashing … out trying to get out … from all of the people that were holding [her] down'. She said, in answers to certain questions from counsel:
[Mr King:] [The Police] planned to stop you from going to work [that day]? --- I believe that's correct.
And from getting your new job? --- They actually detained - they said to Darren [Whittaker] when they were raiding our house that they've detained me and that if he cooperates they'll let me go. So to me it seems as if I was detained as a little bit of leverage to deal with Darren, seeing as they entered our house without a warrant.
Was there some reason why you had to be offensive though? --- No, and you know what, I'll be honest with you, if I had have been there on the day and turned to that Detective Sergeant McKenzie and gone, 'I really want to hurt her and I'm going to intentionally assault her,' I would think it's fair to charge me with assault. When you've got that many police officers surrounding a 22-year-old girl in tears, stressing out, going to work, I can't account for me lashing out and swearing. I wasn't in a fit state of mind. Put an animal in a cage and everyone stand around and lash out at it, and see if it acts rationally, because that's what happened to me. I don't even recall what I said. I know I swore. I was being hurt. I was thrown on the ground.
You weren't being hurt and thrown on the ground at this stage? --- Okay.
Were you?---I was being threatened with gaol so yes, I believe I was - I was fearing for my life and where I stood at. There were that many police officers there and then when I read their statements and they were all exactly the same - and it's kind of interesting because the statements that I read that they wrote - very different from this one, the [unofficial] transcript. …
Didn't intentionally kick her [the officer]? --- No, I didn't. I was lashing out, I was being struggled with, I was being hurt. I was on the side of the road on the highway at 8 o'clock in the morning trying to go to work. It was quite a horrific experience. My apologies if I wasn't behaving my best.
Do you have a habit of not behaving your best? --- No, I don't. If you have a look, nothing like this has ever happened to me before because normally I just drive to work and go to work. I didn't pull these guys over and start kicking them. That's not what happened.

Legal principles to be applied

In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), Toohey and Gaudron JJ said, at 380
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.
See also the passage from Mason CJ in Bond cited by Dr B De Villiers in this Tribunal in Lobley v Commissioner of Police (2005) 42 SR (WA) 195 at [22].
Here, I have already emphasised that the context of the activities in which the issues of character and reputation arise is a stringent licensing regime with respect to handguns.

In Wignall, this Tribunal said, at [297] - [300], emphasis added:
Wheeler J [suggested in Tavelli v Johnson, unreported, Supreme Court of Western Australia, Library No 960693, 25 November 1996, at pages 7 - 9] that indications that a person may be of good character and a fit and proper person, notwithstanding previous convictions, may be gleaned from the following factors:
•where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by their words;
•if the offences were committed a substantial time ago. One would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors;
•any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
•a person's character generally since commission of the offences, including his lack of offending, age, family support, paid and voluntary work and character references. Character references, however, will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
What is sufficiently clear on all the authorities cited to the Tribunal, is the fact that just because a person has been convicted of some offence in the past does not necessarily mean that they are not a fit and proper person to be given a licence under a statutory licensing system. The licensing statute in question would need to state quite unequivocally that a person could never be granted a particular type of licence if they had been convicted of an offence or a particular offence before this result would follow.
In relation to the Firearms Act, as we have seen, s 11(3)(a) expressly provides that the Commissioner, and so the Tribunal on review, has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold a firearms licence if satisfied 'that at any time within the period of five years before the person applies for the licence', the person was convicted:
•of an offence involving assault with a weapon;
•of an offence involving violence;
•of any offence against the Firearms Act itself.
Section 11(3)(a), therefore, provides some clear intention that the Parliament ordinarily expects the Commissioner not to grant a firearms licence if any of those defined conviction circumstances exists, although it still leaves the Commissioner with a discretion to regard particular circumstances in which the conviction was made.

Discussion of the issues and findings concerning Ms XYZ

Mr King drew attention to the nature of the conviction and the statutory framework that singled out certain matters for special attention. He submitted that Ms XYZ had 'acted violently and irrationally' and shown little respect for uniformed police officers doing their job. He raised the possibility that such behaviour might erupt again, perhaps in the vicinity of firearms. These matters reflected adversely on her character. He submitted that insufficient time had elapsed for the conviction to be disregarded.
Mr McGrath emphasised that Ms XYZ was a strongwilled, independent person, who had been open about her relationship with her partner (Mr Whittaker). However, she had led her own quite separate life. He submitted that the incident leading to her conviction should be put into perspective: she was a young person, on her way to her new job and in some distress at the time. Her record was excellent apart from this one 'out of character' incident. The penalty reflected these matters. He also drew attention to her current responsible job as a payroll officer and submitted that Ms XYZ also had 'excellent antecedents'. Subject to what I say below, all of this may be generally accepted.
The Tribunal has, however, reached the conclusion that at this stage of her life Ms XYZ cannot be regarded as a 'fit and proper person' to hold a handgun licence. This is so for the following reasons.
First, as we have seen, the Act itself places offences of violence in a special category and regard should be given to this legislative indication. I do not think, with respect, that the relatively small fine and the spent conviction imposed upon Ms XYZ in themselves adequately reflect the circumstances of the offence, at least when all the facts are known and, more particularly, when it is looked at for the purposes of regulatory standards in connection with firearms control in this State. This Tribunal is, of course, not entitled to 'go behind' a conviction such as to set it aside or to disregard it, but we are entitled to have regard to both the complete context that led to the recording of a conviction, and the potential penalties attaching to such a conviction. There are, in fact, harsh consequences for assaulting a police officer, hence in 2006 the maximum formal penalty on summary conviction was three years' jail or 10 years' jail upon indictment. Those consequences may also visit themselves upon any applicant seeking the privilege of firearm ownership.
Secondly, I agree that, in any event, there were some elements of violence and irrationality on Ms XYZ's part in relation to the incident of 12 June 2006. Obedience to lawful directions, respect for police officers doing their job (however inconvenient for the citizen) and maturity of action in such circumstances are hallmarks of the character that warrant trust in the repository of the community's bestowal of the privilege of handgun ownership. Further, I think Ms XYZ lacks sufficient insight as regards these matters, as some of the passages of crossexamination, set out above, demonstrate.
In the circumstances of this case, the further passage of time, combined with such matters as a continuing stable environment and no involvement with incidents of the kind dealt with above, might well lead to the rehabilitation of character sufficient to own a firearm. The Act itself specifies the period of five years during which time special attention can be paid to certain convictions and other matters: see s 11(3)(a).

Discussion of the issues and findings concerning Mr Whittaker

Mr McGrath pointed out that Mr Whittaker's previous convictions dated from some 18 years ago; that they were all now spent convictions; that they were at the lower end of criminality; that none of them were connected with firearms; that they arose in a context where Mr Whittaker was a 'young male growing up in isolated [regional or rural] townships'; and that he had no convictions whilst a member of the club. All of this may be accepted and, standing alone, such matters would not appear to necessarily disentitle Mr Whittaker to a firearms licence on character grounds.
The more difficult area is Mr Whittaker's past association with the Coffin Cheaters. On this issue, Mr McGrath submitted that Mr Whittaker had had no association whatever with the club for some two and half years; that he had no connection with various named 'persons of notoriety' for from two and half years to three years ago; and that there was no evidence other than that Mr Whittaker had left the club 'in good standing'. On the question of the gulf between the police view of the club and what Mr Whittaker witnessed, I understand the applicant's position to be that essentially he had 'moved on' from whatever that world was and that he should be accepted today on his merits, unconnected with the baggage (if any) of the past.
In reply, Mr King emphasised the long period of Mr Whittaker's membership; the nature of the club itself; the unresolved circumstances of Mr Whittaker's departure and how relatively little time has actually passed since Mr Whittaker broke away from the club.
At this point, it is convenient to record that the Tribunal has come to the conclusion that it could not be said, on the material presently available to the Tribunal, that Mr Whittaker was 'a threat to public safety'. By all accounts, whatever the past, he is now a lawabiding citizen who is attempting to integrate into the community's mainstream. If there is relevant recent material to contradict this picture then it has not been put to me. It also follows that questions of public safety do not arise as regards his character.
However, his general character is an entirely different matter and that past is directly relevant to this quite separate inquiry. In the Tribunal's view, at this point in time, in connection with the issue of whether Mr Whittaker is a fit and proper person to possess and use a special type of weapon, namely a handgun, he fails to pass muster. This is because of:
•His long-standing past association with an organisation that I have characterised elsewhere in these reasons as a 'unique quasi-criminal subculture with a particularly cavalier, intimidatory and lawless attitude, underpinned by actual or threatened violence'. In doing so, Mr Whittaker must have been taken to have accepted the club's ethos until somewhere near to the time where in his own words '[he] got to a point in [his] life where [he'd] taken a different stance'. However, he is not entitled to simply renounce unilaterally the past as if it never existed and then to expect everybody else to go along with that.
•His past propensity to engage in acts of violence in relation to matters involving the club, even including, it appears, the circumstances of his departure. The euphemisms that these incidents were 'arm wrestles' or disagreements of some sort do not disguise the fact that they are evidence of the underpinning 'by actual or threatened violence' that I have spoken of.
•Importantly, his refusal at the present time to acknowledge the seriousness of these matters - particularly aspects of the club's less desirable activities.
In a sense, this is most unfortunate for Mr Whittaker. I say this as the Tribunal has some sympathy for Mr Whittaker, as he seems to be now making every effort to escape from an extreme culture of a flawed organisation - something he appears to have recognised, impliedly at least. He might even have been punished for so leaving - it is not entirely clear. There have been no recent incidents of violence on his part reported in these proceedings.
Further, he presented to the Tribunal in a straightforward, almost engaging manner and was reasonably impressive where he could talk freely about matters - unrestrained, that is, by any reticence given the nature of the club, as to other matters which he could not acknowledge. He was perhaps an understandable choice as police liaison officer - and no doubt the police at some level appreciated the practical role he played in keeping the lines of communication open to avoid misunderstandings or the escalation of incidents.
Nevertheless, it was disingenuous of him, to say the least, to suggest that the police role meant that he was shielded from the club's 'other' activities. In fact, his unwillingness or inability to accept directly any of the overwhelming evidence of the Coffin Cheaters' past misconduct leads to a continued stain upon his character. Moreover, there is no contrition evident, or remorse shown, for, amongst other things, the disruption to the community's life by reason of the club's activities and associations over the years - matters that are now so well recorded, and for which he must take at least some indirect responsibility as a longstanding member and as a de facto office bearer of the club.
According to the cases discussed above, these matters all go to the question of his character.
Mr Whittaker wants to 'move on' but that process might well require if not confession at least some acknowledgement of these matters. Now, it is true that there are considerable difficulties with this path, not the least of them might be that do so publicly, at least, might attract the risk of violent assault or other harassment for being seen to 'betray' the ethos of the club. But, without such steps, however guarded, there can be no progress towards societal redemption and the availability to Mr Whittaker of the consequent privileges of a society based upon ordered liberty - one such privilege being that of handgun ownership in certain circumstances to persons of good character.
The stain on his character will eventually fade if he keeps on this path and even without acknowledging these matters, the passage of time might itself be sufficient to expunge the past. But we are a long way from that point after a mere two and half years on from termination of all association with the Coffin Cheaters.

Conclusions

For the reasons given above, both applicants have failed to demonstrate that they meet the character requirements to hold a licence for a handgun in this State. The applications for review will therefore be dismissed.
The Tribunal makes the following orders:
1.The applications for review are dismissed.
2.The decisions of the respondent Commissioner under review are affirmed.
I certify that this and the preceding [100] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER