Cole v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-11-09

(2) A copy of these reasons, without redaction, shall be released to the Applicants and the Respondent.

REASONS FOR DECISION

The Applicants, Mr Peter Douglas Cole and Ms Ann Cole applied to this Tribunal on 12 July 2021 for a review of a decision by the Commissioner of Police (the Commissioner) to impose a special condition on their respective firearm licenses pursuant to s75(1)(b) of the Firearms Act 1996 (the Act) and s9(1) of the Administrative Decisions Review Act 1997 (ADR Act).
The condition imposed was: "The licence holder must not store, use or possess firearms, firearm parts or ammunition at any location where Peter Robert Cole (DOB: *********) resides or frequents" (the Special Condition)
Peter Robert Cole is the Applicants' 37-year-old son (the Applicants' son).
It is not the Applicants suitability to possess or use firearms which is in issue. This is accepted by the Commissioner.
Rather, the factors relied upon by the Commissioner as creating the necessity for the Special Condition are based upon circumstances involving the Applicants' son who is the subject of a Firearms Prohibition Order issued under s 73 of the Act on 29 March 2017.

Background

The Applicants each hold a Category AB firearms license for the reason of recreational hunting/ vermin control, based on permission to shoot on rural land. In respect of Mr Cole, this has been for a period of approximately 9 and a half years and in respect of Mrs Cole, approximately 24 years.
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On 10 December 2020, the Applicants' son was granted conditional bail in respect of a charge of common assault. The conditions included that the Applicants' son abide by the terms of an Apprehended Violence Order in respect of which Ms LP was named as the "person in need of protection".
As recorded in the "Commissioner's Internal Review-Statement of Reasons", a further condition of bail was that the Applicants' son reside at the Applicants' residence.
On 4 February 2021, the Applicants' son was at the Applicants' residence.
On or around 4 February 2021, Ms LP travelled to the Applicants' residence.
On 4 February 2021, Ms LP called triple zero in relation to the Applicants' son allegedly breaching the AVO and the Applicants' son was arrested.
On 5 February 2021, the Applicants' son was bailed, once again on the condition that he reside at the Applicants' residence.
On 6 February 2021, police seized the Applicants' firearms because their son was the subject of a Firearms Prohibition Order and residing at their residence.
On 24 February 2021, the Local Court continued the bail conditions.
On 26 February 2021, the Applicants' firearms licences were revoked.
On 30 March 2021, the Applicants requested an internal review be conducted of the decision to revoke the Applicants' licences.
On 5 July 2021, the police advised the Applicants that the police were no longer required or obliged to store the Applicants' firearms and that storage with a firearms dealer would need to be arranged by the Applicants. The Applicants were also informed that the internal review could take up to 12 months to be resolved.
On 12 July 2021, the Applicants applied to the Tribunal for administrative review as no internal review had been completed.
On 29 July 2021, the Tribunal remitted the decision to the Respondent for reconsideration.
On 3 August 2021 the revocation decision was set aside, and in its place a decision was made to impose the Special Condition in respect of Mrs Cole.
On 25 August 2021 the revocation decision was set aside, and in its place a decision was made to impose the Special Condition in respect of Mr Cole.

Legislation

Section 19(1) of the Act provides that a licence may be imposed by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. The issue for the Tribunal is whether the correct and preferable decision is to impose conditions on the Applicants' licenses and if so, what conditions should be imposed.
Section 3(1) of the Act provides guidance as to how the Act is to be administered which declares that firearms possession and use is "conditional on the overriding need to ensure public safety". Consistently with that approach, s11(3) of the Act states that a licence must not be issued unless 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. Similarly, under s11(7) of the Act, the Commissioner may refuse to issue a licence if of the view that issue of the licence would be contrary to the public interest. It is in this context that the Commissioner's power to impose conditions on firearm licences under s 19(1). must be applied and to determine whether considerations of public interest or concern for public safety justify the imposition of the condition imposed.
Accordingly, the issue to be addressed by the Tribunal involves considerations of public interest including whether any concerns for the risk of public safety justify the imposition of the Special Condition and whether the inconvenience suffered by the Applicants because of the imposition of the Special Condition is necessary to ensure public safety: Robinson trading as Botany Mascot Security v Commissioner of Police, NSW Police [2008] NSWADT 17 at [65]. However, it is necessary to adopt a balanced view of any identifiable risk bearing in mind all relevant circumstances.
As held by Montgomery JM in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] (Webb)" "Only real and appreciable risk needs to be taken into account. Minimal fanciful or theoretical risk can be excluded from consideration."

Tribunal review

The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(b) of the Act and s9(1) of the ADR Act. Pursuant to s63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one.
The Tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).

Evidence

In addition to the material lodged by the Commission pursuant to s58(1) of the ADR Act (Exhibit R1), the Commissioner relies upon his written submissions (Exhibit R2).
The Applicants rely on: 1. Letters from the NSW Police Force attached to their Application to the Tribunal (Exhibit A1) 2. Written submissions entitled "Presentation of supporting information for Appeal against conditions on reinstated firearms" and supporting documents (Exhibit A2); and 3. Reply written submissions entitled "Response to Police Reply" (Exhibit A3).
The Applicants have not sought to rely on any statements but have, however included their version of events in their written submissions described above which I treat as their evidence.
The Applicants are not legally represented but have nominated Mr Kevin Waite as their representative. The Respondent has not expressed any objection to Mr Waite acting in this capacity. Leave for Mr Waite to act as the Applicants representative for the purposes of these proceedings is granted.

Submissions

In making the case that there would be a sufficient risk of public safety to justify the imposition of the Special Condition, the Commissioner relies on three bases. The Commissioner makes the following submissions: 1. The Applicants' son is not fit to have possession of a firearm. The Commissioner relies upon the Firearms Prohibition Order and refers to the Applicants' son having a lengthy criminal history involving offences of serious violence. 2. The Applicants' son "is known to frequent and on occasion stay at [the Applicants' residence]". The evidence relied upon in this regard is limited to the events of February 2021 as described above. 3. Further, it is unclear where the Applicants' son is currently residing and, as such, the Tribunal cannot be satisfied that the Applicants' son may not visit or stay at the Applicants' residence from time to time.
In this context, the Commissioner contends that reliance may be placed on the decision of the Administrative Decisions Tribunal (ADT) in Tolley v Commissioner of Police [2006] NSWADT 149 (Tolley) on the basis that the circumstances are "similar" because that decision also dealt with circumstances in which it was not the applicants' suitability to possess or use firearms which was in issue but arose because of the criminal history and circumstances of the applicants' son. I have also had regard to Mulligan v Commissioner of Police [2020] NSWCATAD 272 which applies the decision of Tolley.
The Applicants' resist the position propounded by the Commissioner and contend there is insufficient risk or no risk at all because the firearms are safely kept such that the Applicants' son (or anyone else) could not gain access to them. The Applicants rely upon the fact that their firearm safe keeping provisions have been inspected and approved by police on multiple occasions as well as evidence of Mr Cole that further upgrades to the security of the firearms have been undertaken. The Applicants also rely upon Mr Cole's experience in the armed forces as a Vietnam veteran as evidencing his experience and knowledge of firearm safekeeping.
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Consideration

Mrs Cole has a lengthy unblemished firearms licensing history and other than a few traffic matters, Mrs Cole has never come to the adverse attention of the police.
While Mr Cole's criminal history is not unblemished, more than 37 years have passed without Mr Cole being brought before Court or being charged with a criminal office. In addition, Mr Cole has held a firearms license since 2016 without any allegation of misuse or threats to misuse a firearm.
It is not in dispute that the Applicants suitability to possess or use firearms is not in issue. Rather, the factors relied upon by the Respondent as creating a risk to public safety and the need for the Special Condition is based upon circumstances involving the Applicants' adult son.
I accept that the Applicants' son is the subject of a Firearms Prohibition Order and has a lengthy criminal history involving offences of serious violence. However, that alone is insufficient to justify the imposition of the Special Condition on the firearm licenses of his parents. Rather, there must be some proximity or connection as between the Applicants' son and the firearms which are stored at the Applicants residence in circumstances where a "real and appreciable risk" is created as held in Webb.
The need to establish this risk is reflected in Tolley, which is relied upon by the Commissioner. In Tolley, that risk was held to be created in several ways.
First, prior to the arrest and conviction of Mr Tolley's son for serious drug offences (including commercial supply), Mr Tolley's son resided at Mr Tolley's residence where firearms were stored, and it was held that: "The [ADT] … did not consider that there was any basis for assuming that Mr Tolley's son would not return to live with him once released from custody".
Secondly, the drug offences committed by Mr Tolley's son were committed at Mr Tolley's residence.
Thirdly, although the charges against the son did not relate to firearm use, a search warrant executed at the premises of his alleged co-accused found a number of prohibited and unregistered firearms.
Fourthly, in relation to previous offences of the son, police searches found two rifles and a locked metal safe at the back of the shed on the premises
These circumstances provided a basis to conclude that a "real and appreciable risk" existed given the type of criminal offences conducted by Mr Tolley's son, that those offences were conducted at Mr Tolley's residence where firearms were stored in circumstances where evidence existed that Mr Tolley's son, and/or his criminal associates may have an interest in those firearms. In these circumstances, the ADT held that there was a risk to public safety by the existence of the firearms on premises where the son and his associates may be aware firearms were present.
Conversely, the factual allegations relied upon by the Commissioner in these proceedings as creating the "real and appreciable risk" are limited to the allegation that the Applicants' son "is known to frequent and on occasion stay at [the Applicants' residence]" (the First Submission) and the further allegation that it is unclear where the Applicants' son is currently residing and, as such, the Tribunal cannot be satisfied that the Applicants' son may not visit or stay at the Applicants' residence from time to time (the Second Submission).
As an initial observation, it is difficult to reconcile the Commissioner's First Submission with the Second Submission. The First Submission urges the Tribunal to make a positive finding as to the fact that the Applicants' son stays at the Applicants' residence whereas the Second Submission contains an implied admission that the Tribunal cannot be satisfied that the Applicants' son will or will not stay at the Applicants' residence. It is therefore assumed these submissions are made in the alternate.
In any case, for the reasons below, I am not persuaded by the First or Second Submission. A "real and appreciable risk" that necessitates the Special Condition has not been established. I further find that the facts before me are distinguishable to those of Tolley.
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Thirdly, unlike the facts in Tolley, the majority of offences of the Applicants' son involve allegations of assault. The character of those offences is not analogous to those in Tolley where the Commissioner's concerns arose, in part, because of the organised nature of the crimes committed by Mr Tolley's son at Mr Tolley's residence and the knowledge of the son's associates as to the location of firearms.
Fourthly, it is not in dispute that the Applicants' son is the subject of a Firearms Prohibition Order. That order includes, amongst other conditions that the Applicants' son is prohibited from residing at premises where a firearm is kept: Section 74(1) and (6) of the Act. Additionally, the Applicants commit an offence if either of them supplies or give their son possession of a firearm knowing that their son is subject to a Firearms Prohibition Order: Section 74(4) of the Act. According, and by virtue of that Order, the Applicants' son is already prohibited from residing at the Applicants' residence or any residence where there are firearms, firearm parts or ammunition. In these circumstances, the Special Condition would appear to serve no additional utility given the extent of the prohibitions in the Firearms Prohibition Order which extend to third parties with knowledge of the Firearms Prohibition Order. That would include the Applicants.
In these circumstances, any risk associated with the Applicants' firearms with reference to their son rises no higher than "minimal fanciful or theoretical risk" that, according to Webb may be excluded from consideration. Additionally, any such risk is mitigated by the Firearms Prohibition Order making the Special Condition redundant.
In answer, the Commissioner contends that the utility is derived from the fact that the Firearms Prohibition Order only prohibits the Applicants' son from "residing" at premises where a firearm is kept but does not prohibit "staying" at those same premises. This is rejected. Irrespective of whether a person is temporarily residing at a premise for a matter of days or months or permanently residing at a premise for matter of years, both scenarios would fall within the plain meaning of "residing" and is prohibited pursuant to the Firearms Prohibition Order.
I find that considerations of public interest do not justify the imposition of the Special Condition. I am persuaded that the correct and preferable decision is to set aside the decision of the Commissioner to impose the Special Condition such that the Special Condition be removed from the Applicants' firearm licences.

Compensation

The Applicants make application for compensation in the amount of costs associated with storage of their firearms.
The jurisdiction of the Tribunal to award costs is derived from s 60 of the CAT Act however, this is limited to "costs" as defined. "Costs" are defined as: "(a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal."
Storage costs do not fall within the definition of "costs" for the purposes of s60 as they are not costs of or incidental to these proceedings before the Tribunal nor costs of or incidental to the application before the Commissioner of Police.
Even if that was incorrect, the basis of the alleged entitlement according to the Applicants is a "denial of natural justice". The precise basis of this allegation is not clear on the Applicants' papers. In any case, I find there is no basis to conclude that the Applicants' have been denied natural justice and I reject that contention. I am otherwise not satisfied that there are special circumstances pursuant to s60(2) of the CAT Act which would justify an award of costs.

Confidentiality orders

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For that reason, confidentiality orders under s 64(1)(c) of the CAT Act are made and all paragraphs marked "[Not for publication]" are not to be published. This order is subject to the qualification that the Applicants and the Commissioner may receive a full copy of these Reasons without redaction.

Orders

The Tribunal orders: 1. Leave for Mr Waite to act as the Applicants representative for the purposes of these proceedings is granted. 2. The decision of the Respondent of 3 August 2021 in respect of the Second Applicant to impose a special condition on the Second Applicants' Category AB firearms licence reading "The licence holder must not store, use or possess firearms, firearm parts or ammunition at any location where Peter Robert Cole (DOB: [insert date]) resides or frequents" be set aside and that special condition be removed. 3. The decision of the Respondent of 25 August 2021 in respect of the First Applicant to impose a special condition on the First Applicants' Category AB firearms licence reading "The licence holder must not store, use or possess firearms, firearm parts or ammunition at any location where Peter Robert Cole (DOB: [insert date]) resides or frequents" be set aside and that special condition be removed. 4. Except pursuant to order (5) below, the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013. 5. A copy of these reasons, without redaction, shall be released to the Applicants and the Respondent.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2021

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)