Wilkinson v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 59

CITATION:	Wilkinson -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 59
DIVISION:	General Division
PARTIES:	APPLICANT James William Wilkinson RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013262
HEARING DATES:	05/02/2002
SUBMISSIONS CLOSED:	03/21/2002
DATE OF DECISION:	04/22/2002
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:	Firearms Act 1996 Mental Health Act 1990
CASES CITED:	Turner -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 169 Federici -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 183 Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 [2001] NSWADT 166 Polyzogopoulos -v- Commissioner of Police, New South Wales Police Service Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 Cleofe -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2 Peardon v Commissioner of Police, New South Wales Police Service [2001] NSWADT 188 Kudrynski -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 101. Sweet -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 185 Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) Pointon v. Walkley [1951] S.A.S.R. 121 Kirby v. Leather [1965] 2 Q.B. 367 King v. Coupland Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The decision of the Commissioner is set aside.

Introduction
1 On 11 April 2001, the Commissioner of Police (the Commissioner) revoked Mr Wilkinson’s Category G and H firearms licence. A Category G firearms licence relates to collectors of firearms and a Category H firearms licence relates to pistols (See s 8 Firearms Act 1986). On 1 November 2001, after the decision had been affirmed on internal review, Mr Wilkinson applied to the Tribunal for a review of this decision.

Background
2 Mr Wilkinson joined the Combined Business Houses Pistol Club in 1966. He has not participated in target shooting since June 1999. His most recent licence was issued on 23 October 1998 and was due to expire on 22 October 2003. The licence was suspended on 29 June 1999 following Mr Wilkinson being charged with five counts of not keeping a firearm safe.

3 On 1 March 2000 the Commissioner lifted the suspension. Apparently the decision to lift the suspension was an error. Mr Wilkinson’s licence was revoked on 7 June 2001. The Commissioner gave no explanation for the delay in revoking Mr Wilkinson’s licences. The reason for the revocation relates to incidents which occurred on or about 29 June 1999.

Evidence
4 The evidence in this matter consisted of the Police file, several documents enclosed with a letter to Mr Wilkinson dated 10 January 2002, three reports from Dr Freed dated 22 June 2001, 4 September 2001 and 1 February 2002 and a report from Dr Wendy-Louise Walker dated 20 October 1999. The majority of the 1 February 2002 report was not admitted into evidence because it contained opinions on matters about which Dr Freed was not qualified and some irrelevant matters.

5 Mr Wilkinson’s oral evidence was that he took one of his pistols into his office on Thursday 24 June 1999 so that he could finish cleaning it during his lunch hour. He was due to go to the pistol club on Monday 28 June 1999 and wanted at least one clean pistol to take with him. He had checked his pistol safe at home and found that his firearms were starting to corrode. He attributed this to extensive water damage in his home due to severe hail storms which occurred in Sydney about that time.

6 Mr Wilkinson did not have an opportunity to clean his pistol at lunch time that day but spent an hour or so cleaning it in his office that evening. He was unable to finish cleaning his pistol because he wanted to visit his mother who lives in a nursing home. The following day, Friday 25 June 1999, Mr Wilkinson went to a lunch with work colleagues. He had intended to return to work at about 2 pm but instead decided to go on to another work related function. He continued to drink alcohol throughout the afternoon and says that he was moderately intoxicated. He told a work colleague that there was a pistol in his office that he needed to take home. Mr Wilkinson did not return to his workplace that evening and the pistol remained disassembled and locked in a drawer in his office. Mr Wilkinson said that this was the only time he has ever taken a firearm to his workplace.

7 Mr Wilkinson was off work with a viral infection on the following Monday, Tuesday and Wednesday. During this period he took his other pistols out of the safe in the laundry and took them upstairs to clean them. He kept them in a cardboard box in an upstairs bedroom during this time.

8 The police file shows, and it is not in dispute, that employees of the Department of Industrial Relations and police officers searched Mr Wilkinson’s office on 28 June 1999 and found various things including a pistol in a locked drawer.

9 On Wednesday 1 July 1999 two police officers came to Mr Wilkinson’s home to serve a firearms suspension order on him and to ask him some questions. Mr Wilkinson showed the police officers where his pistols were stored and was charged with five counts of failing to keep firearms safe. One count related to the storage of a pistol at Mr Wilkinson’s workplace and the other four charges related to storage of pistols in Mr Wilkinson’s home.

10 Dr Wendy-Louise Walker prepared a report in relation to Mr Wilkinson dated 20 October 1999. That report concluded that Mr Wilkinson was “profoundly depressed” but that there were no indications of psychosis such as formal thought disorder, delusions or hallucinations. Dr Walker’s opinion was that Mr Wilkinson’s judgement and intellectual efficiency were significantly impaired by virtue of his depression. She noted that he had greatly reduced his alcohol intake on the advice of his treating psychiatrist, Dr Freed.

11 Charges relating to “not keeping firearms safe” were heard in the Local Court on 4 November 1999. The Magistrate dismissed the charges under s 32 of the Mental Health (Criminal Procedure) Act 1990. Under that provision a Magistrate may take certain action, including dismissing the charge, if, among other things, the defendant is suffering from a mental condition for which treatment is available in a hospital. That section states that:

32. (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings;
(b) grant the defendant bail in accordance with the Bail Act 1978;
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may dismiss the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions; or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both; or
(c) unconditionally.
(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.
12 When dismissing the matter, the Local Court imposed certain conditions on Mr Wilkinson. These conditions were that:
The defendant is to surrender his firearms to police within 24 hours.
The defendant is not to apply for a firearms licence until he satisfies police that he is no longer suffering from a mental illness.
The defendant is to receive psychiatric treatment for his mental condition.
The defendant is to take all medication prescribed for his mental condition.
The knife seized by police is to be forfeited to the police for destruction.
13 Mr Wilkinson states that he has complied with these conditions and has no criminal convictions.

14 The medical evidence from Dr Freed, Mr Wilkinson’s treating psychiatrist, was as follows:

· A report from Dr E Freed dated 22 June 2001 stated, in part, that “Mr Wilkinson has been well since 23/2/00.”

· A report from Dr E Freed dated 4 September 2001 stated, in part, that “Mr Wilkinson has suffered from a Major Depression and past alcoholism. The depression has been in complete remission since his discharge from St Vincent’s Hospital on 23/2/00 (three week admission) and he has been alcohol free since that time. He is on a low dose maintenance anti-depressant Aropax 20mg 1 mane. . . In Mr Wilkinson’s case he has made a full and sustained recovery.”

· A report from Dr E Freed dated 1 February 2002 stated that Mr Wilkinson has been off the antidepressant Aropax since 7/11/2001 and he has been alcohol free for two years. He has been clinically well for almost two years. There are no signs of mental abnormality or any homicidal tendency.

Relevant legislation
15 The Firearms Act 1996 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. In this case the Commissioner relies on the provisions in italics:
A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(d) for any other reason prescribed by the regulations.
16 In relation to s 24(2)(a), s 11(4)(a) of the Firearms Act states that:
(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of :
(a) the applicant's way of living or domestic circumstances, or
(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c ) the applicant's intemperate habits or being of unsound mind.
17 In relation to s 24(2)(d), Clause 17 of the Regulation states that:
In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.
18 Based on these provisions, the Commissioner alleges that he made the correct and preferable decision in revoking Mr Wilkinson’s firearms licence because:
1. Mr Wilkinson would be required to be refused a licence of the same kind if he applied for one.
2. Mr Wilkinson has contravened a provision of the Firearms Act or the Regulations, whether or not he has been convicted of an offence for the contravention.
3. Mr Wilkinson may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances.
4. Mr Wilkinson is not a fit and proper person to continue to hold a firearms licence.
5. It is not in the public interest for Mr Wilkinson to continue to hold a licence.
19 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Wilkinson’s firearms licences on any of these grounds.

20 Part 4 of the Firearms Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that a person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.
21 As a holder of a category H licence s 41 of the Act requires Mr Wilkinson to comply with the following specific requirements:
1) The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies:
(a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated,
(b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,
(c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm,
(d) such other requirements relating to security and safe storage as may be prescribed by the regulations.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.
(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.
Reasons and decision
22 Objects 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.
23 Mr Wilkinson would be required to be refused a licence of the same kind if he applied for one. Despite relying on this ground for revocation in the internal review letter, the Commissioner did not rely on this ground at the hearing.

24 Mr Wilkinson has contravened a provision of the Firearms Act or the regulations, whether or not he has been convicted of an offence for the contravention. Mr Wilkinson conceded that storing his disassembled pistols in a locked drawer at his workplace and in a cardboard box in a bedroom does not meet the requirements in the legislation. Consequently, even though he has not been convicted an offence in relation to these matters he admits that he has contravened the storage requirements of the Firearms Act.

25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. As is made clear from Part 4 of the Firearms Act Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licensees.

26 The Tribunal has handed down decisions in several cases where the Commissioner has revoked a firearms licence when the licensee has breached storage requirements. In all those cases the Tribunal has affirmed the Commissioner’s decision, either wholly in part: Turner -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 169:; Federici -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 183; Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; [2001] NSWADT 166 Polyzogopoulos -v- Commissioner of Police, New South Wales Police Service; Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91; Cleofe -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2; Peardon v Commissioner of Police, New South Wales Police Service [2001] NSWADT 188; Kudrynski -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 101.

27 These decisions make it clear that the Tribunal views failure to store firearms safely extremely seriously. However, this case can be differentiated from other cases. While there is no dispute that Mr Wilkinson has breached the storage requirements in the Firearms Act, based on the report of Dr Wendy-Louise Walker and the decision of the Local Court, Mr Wilkinson was profoundly depressed when he breached those requirements. Dr Walker reported that Mr Wilkinson’s judgment and intellectual efficiency were significantly impaired by virtue of his depression. The current unchallenged medical evidence is that he is no longer suffering from depression or alcoholism.

28 Taking into account all the evidence, I am of the view that Mr Wilkinson’s failure to store firearms safely, while a serious matter, was committed when he was suffering from depression and is unlikely to be repeated. Consequently the Commissioner’s decision to revoke his licence on this ground is not justified.

29 May not personally exercise continuous and responsible control over firearms. The third ground set out by the Commissioner in the Statement of Reasons was that he has reasonable cause to believe that Mr Wilkinson may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind.

30 In Sweet -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 185 the Tribunal examined the meaning of the phrase “unsound mind” and made the following observations;

In interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind."

In Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Lee J gives a useful exposition of the meaning of "unsound mind." His Honour said that:

Mayo J. in Pointon v. Walkley [1951] S.A.S.R. 121 at 125, when concerned with the meaning of "unsound mind" for the purposes of a limitation statute . . . said:-
"`Unsound' is the anthesis of `Sound'. `Sound', when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality.

When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland . So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment".

31 One of the principles of the Act, as set out in s 3(1)(a), is

to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.
32 The term "unsound mind" must be interpreted in the context of this principle. To be of "unsound mind" a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm.

33 Dr Freed’s unchallenged evidence of Mr Wilkinson’s mental state is that he has made a full recovery from his depressive illness and has not used alcohol for 2 years. In those circumstances, he is not of unsound mind nor does he have intemperate habits. Consequently, the Commissioner’s decision to revoke his licence on this ground is not justified.

34 Fit and proper person. Mr Wilkinson’s past behaviour in failing to store his firearms safely is the only matter which could provide a basis for submitting that he is not a fit and proper person to have a firearms licence. Mr Wilkinson breached the storage requirements of the legislation at a time when he was suffering from a mental illness. He has now recovered from that illness. In those circumstances it cannot be said that he is no longer a fit and proper person to hold a licence.

35 Public interest. The Appeal Panel of this Tribunal considered the meaning of "public interest" in the context of the Security Industry Act, in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25). In that case the Appeal Panel stated that the public interest is:

. . . an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
36 The evidence establishes that Mr Wilkinson failed to store his firearms safely at a time when he was suffering from depression. There is no public interest in revoking his licence in circumstances where he has recovered from that illness and there is no evidence that he may suffer similar episodes of depression at some time in the future.

Orders
37 The decision of the Commissioner is set aside.