Wilson v Commissioner of Police, NSW Police Service
[2002] NSWADT 181
•09/25/2002
CITATION: Wilson v Commissioner of Police, NSW Police Service [2002] NSWADT 181 DIVISION: General Division PARTIES: APPLICANT
Robert William Wilson
RESPONDENT
Commissioner of Police, New South Wales Police ServiceFILE NUMBER: 023054 HEARING DATES: 24/05/02 SUBMISSIONS CLOSED: 05/24/2002 DATE OF DECISION:
09/25/2002BEFORE: Hennessy N (Deputy President) APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms (General) Regulation 1997
Firearms Act 1996
Prevention of Cruelty to Animals Act 1979
Security Industry Act 1997CASES CITED: Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321REPRESENTATION: APPLICANT
T Shulze, barrister
RESPONDENT
J Tunks, solicitorORDERS: The Commissioner's decision to refuse Mr Wilson's application for a firearms licence is affirmed.
1 On 24 September 2001 Mr Wilson applied for a category AB and H firearms licence. This licence would entitle Mr Wilson to engage in sport/target shooting and collecting firearms. His application was refused on the ground that he was not a fit and proper person to hold a firearms licence and it was not in the public interest for him to be issued with a licence. On 5 March 2002, Mr Wilson applied to the Tribunal for a review of this decision.
2 The Tribunal has jurisdiction to hear this matter under s 75 of the Firearms Act 1996 (the Firearms Act) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).
Convictions
3 The reason the Commissioner refused Mr Wilson’s application was that he had been convicted, or found guilty with no conviction recorded, of several offences during the last 12 years. Mr Wilson’s criminal record is set out below:
· 7 March 1990: convicted of possessing a shortened firearm and fined $300, found guilty with no conviction recorded of possess antique pistol;
· 1 August 1990: found guilty with no conviction recorded of possess prohibited article;
· 2 February 1992: found guilty of assault, no conviction recorded, 12 month good behaviour bond;
· 21 February 1993: found guilty of assault, assault police, two counts of resisting arrest and offensive language, convicted and fined in relation to each charge;
· 21 December 1996: found guilty of malicious damage.
4 On 29 December 1999 and 2 January 2000 police allege that Mr Wilson behaved in an abusive and threatening manner towards two males.
Legislation
5 The Firearms Act sets up a scheme for licensing people to possess and use firearms. One of the principles of the Act as set out in 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.”
6 General restrictions on the issuing of licences are set out in s 11. Sub-sections 11(3) and (7) state that:
- (3) A licence must not be issued unless:
- (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace
7 A person who has been convicted of certain offences prescribed by the Firearms (General) Regulation 1997 (the Regulation) within the period of 10 years before the application for the licence was made, must be refused a licence. None of the offences for which Mr Wilson has been convicted fall into that category.
Issue
8 The question for the Tribunal is whether, based on all the evidence, the Commissioner made the correct and preferable decision in refusing Mr Wilson’s application for a Category AB and H firearms licence. The Commissioner stated that he was relying primarily on the public interest ground in s 11(7), but that he was relying on the “fit and proper person” ground in s 11(3) in the alternative.
Evidence
9 Mr Wilson had a shooters licence from 24 December 1990 to 5 November 1993, when the licence was revoked.
10 Mr Wilson was previously married but that relationship terminated in 1990. He then had a de facto relationship with a woman I shall refer to as Ms M. This relationship was a turbulent one involving frequent heated arguments and some physical threats and use of force. Mr Wilson rang the police on several occasions to report matters such as Ms M’s refusal to return a sapphire ring, footwear belonging to Mr Wilson and clothes which Ms M had allegedly stolen from his clothes line. Mr Wilson also reported that Ms M had threatened him with a glass bottle and a kitchen knife on two separate occasions. Their relationship terminated in September 2000. Mr Wilson has only spoken to Ms M once since that time.
11 Mr Wilson is currently in a relationship with another woman I shall refer to as Ms A. He gave evidence that they intend to sell their respective properties and buy a joint property away from their current location.
12 Mr Wilson’s convictions on 7 March 1990 came about as a result of a police investigation of his guided hunting business, involving pheasants. Mr Wilson established that business in 1981. Part of the business was releasing pheasants on the property for later "walk up" hunting. Mr Wilson was prosecuted under the Prevention of Cruelty to Animals Act 1979 in relation to these activities, but that action was ultimately dismissed.
13 When searching his property in 1990, police found a shortened firearm, an antique pistol and a silencer in the shed. Mr Wilson said that the two firearms were heirlooms that belonged to his grandfather and that he did not store them in a secure gun cabinet because clients coming to shoot pheasants may realise that he should not have been in possession of these items.
14 Mr Wilson realises that shortened firearms and silencers are used by people in hold-ups and other criminal activities and he knows it was against the law for him to possess these items. He said it was a mistake to have them in his possession but he intended to refurbish one of the firearms. Mr Wilson admitted that it was ironic that while he was a person responsible for securing firearms and teaching firearms safety during the course of his business, he had unlawful and unsecured firearms in his possession.
15 On 2 February 1992 Mr Wilson was found guilty, with no conviction recorded, of assaulting his first wife. Mr Wilson gave evidence that he and his first wife had separated at the time but that he had gone to her house to pick up their daughter for an access visit. According to Mr Wilson, his ex-wife "ordered him out" and closed the sliding door against him. He gave her a "light slap with an open hand on the face." The Magistrate did not record a conviction in relation to this incident but placed Mr Wilson on a 12 month good behaviour bond.
16 In February 1993 Mr Wilson and Ms M went on a holiday to Coffs Harbour to attend a firearms show. At the dinner and presentation night, Mr Wilson said he and Ms M drank two bottles of wine between them and that he was drunk. At one stage during the evening he was dancing with a woman he described as an ex-client. When returning to sit with Ms M, Mr Wilson said that she slapped his face. When they went back to their room an argument developed and Mr Wilson told Ms M to leave and spend the night elsewhere.
17 Ms M left and went to the police station. The police went back to the hotel room and took Mr Wilson into custody. On 21 February 1993 Mr Wilson was convicted of assault, assault police, two counts of resist arrest and using offensive language. He admitted swearing at police but said that he did not hit anyone. There was no evidence as to what the assault on Ms M involved apart from Mr Wilson’s comment at the hearing that he might have thrown something at her.
18 On 21 December 1996 Mr Wilson was found guilty of malicious damage to a motor vehicle. The incident occurred when Ms M was driving away and Mr Wilson allegedly broke the side window of her car. Although Mr Wilson pleaded guilty to this offence he denies he broke the window and says that he didn't even see that the window was broken when the car drove off.
19 On 29 December 1999 and 2 January 2000 Mr Wilson admitted that he yelled obsenities from the street to Ms M's son and his male partner. He called them "poofter" and "queer cunts." The police record states that Mr Wilson called the two men "you poofter cunt" and "you queer cunts" and said "get fucked you're only a queer cunt." Mr Wilson acknowledged that saying these kinds of things was "terrible" but he justified his behaviour by saying that they were calling him names and he was reacting to those taunts. COPS event number E 8126 620 also states that Mr Wilson threatened to shoot both these men. This allegation was not put to Mr Wilson at the hearing and in accordance with the rule in Browne v Dunn (1893) 6 R 67 (House of Lords), I have not taken it into account.
20 Mr Wilson’s current partner, Ms A, gave evidence that she and Mr Wilson met in November 2000 and that they have a good relationship. They have had a couple of arguments but Ms A said that Mr Wilson does not yell at her. However, Ms A said that Ms M has been following her and harassing her. For example she said that while in the supermarket Ms M had pushed into her trolley and tried to snatch items out of her hand as she was taking them from the shelf. On another occasion Ms A said that she dropped a lotto ticket and Ms M kicked it away. She has spoken to police about these matter but has not taken any other action.
Commissioner’ submissions
21 Mr Tunk's relied primarily on the ground of public interest in defending the Commissioner's decision to refuse to grant Mr Wilson a category AB or a category H firearms licence. His submission was that Ms M and Mr Wilson still reside in the same town and because there is ongoing friction at least between Ms M and Ms A, it would not be in the public interest for Mr Wilson to have a firearms licence. When assessing the public interest the Tribunal should take into account Mr Wilson's character, his criminal record and the facts surrounding the offences as well as his domestic circumstances. While Mr Tunks conceded that Mr Wilson gave his evidence in an honest and straightforward style, the Firearms Act makes it clear that gun ownership is a privilege and that public safety is paramount.
Applicant’s submissions
22 Mr Shulze, on behalf of Mr Wilson, submitted that while Mr Wilson has been engaged in improper conduct, that conduct arose primarily from a dysfunctional relationship with his former de facto partner. In relation to the firearms offences, because no conviction was recorded, they can be regarded as being of a trivial nature. The convictions for assault were also minor matters as is reflected by the fact that Mr Wilson was given a bond rather than a community service order, a fine or imprisonment. Although Ms M has threatened Mr Wilson on occasions with a bottle and a knife, Mr Wilson has not responded with any threats or used physical force. In Mr Shulze’s submission Mr Wilson can be trusted with firearms especially since the level of friction between Ms M, on the one hand and Ms A and Mr Wilson on the other, has subsided.
Findings of fact
23 Mr Wilson has been found guilty of three firearms offences. Although he was not convicted of these offences, they occurred at a time when he was responsible for operating a business involving firearms. It is now over 10 years since the commission of those offences and I am satisfied that Mr Wilson understands the gravity of his actions.
24 Mr Wilson has also been found guilty of assaulting both his former wife and his previous de facto partner. There is no documentary evidence available in relation to the particulars of these offences. Mr Wilson's evidence was that he slapped his first wife lightly on the face with an open hand and that he might have thrown something which hit Ms M. Mr Wilson has also been found guilty of malicious damage to property, namely a car window.
25 These matters all related to Mr Wilson's domestic circumstances and for the most part, to his relationship with Ms M which he admits was characterised by frequent arguments and threats some of which involved weapons. Mr Wilson has more recently been involved in a verbal altercation with Ms M’s son and his partner. This homophobic abuse does not reflect well on Mr Wilson’s character or his ability to control his temper.
Decision and Reasons
26 Public interest. The Appeal Panel of this Tribunal considered the meaning of "public interest" in the context of the Security Industry Act 1997, 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.
27 These comments apply equally to the firearms legislation. The interests of the whole community needs to be taken into account when determining whether a person should be given permission to hold a firearms licence.
28 Fit and proper person. In determining whether Mr Wilson is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his convictions (not merely to the convictions themselves) and the activities for which Mr Wilson’s fitness and propriety are being assessed.
29 A leading decision on the issue of the meaning of "fit and proper person" is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ held that:
- The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.
30 Mr Wilson has a history of offences relating to the storage and possession of firearms. Although a conviction was recorded in relation to only one offence, given Mr Wilson’s involvement with firearms he should have been scrupulous in relation to possession and storage. Of even greater concern is Mr Wilson’s history of domestic conflict. That conflict relates to two former partners as well as the son of a former partner. I am not satisfied that Mr Wilson is blameless in relation to these incidents. Although I do not have details of the Local Court proceedings, it is clear that Mr Wilson has difficulty managing his anger in domestic situations. He has also been convicted of assaulting police and causing malicious damage to a motor vehicle.
31 These incidents demonstrate that public safety may be endangered if Mr Wilson is granted a firearms licence and consequently, it would be contrary to the public interest for him to do so. Having made this finding, it is not necessary to consider the Commissioner’s alternative submission that Mr Wilson is not a “fit and proper” person to hold a firearms licence.
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