Crowther v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2016-11-17

REASONS FOR DECISION

These are applications by Mr Robert Crowther and Mrs Kathryn Crowther for review of decisions by the Commissioner of Police (the Commissioner) to revoke firearms licences which had previously been issued to them. Mr and Mrs Crowther are a married couple who lease a property in northern New South Wales. They primarily run sheep on the property.
Mr Crowther has held a Category AB Licence for some time in relation to a .222 and a .22 firearm, the last renewal being on 23 March 2015. This licence was suspended on 14 October 2015 and revoked on 23 March 2016. The decision to revoke the licence was affirmed on internal review on 8 July 2016 on the basis that it is not in the public interest for Mr Crowther to continue to hold the licence.
Similarly, Mrs Crowther has held a Category AB Licence for some time in relation to a .222 firearm, the last renewal being on 4 February 2015. This licence was suspended on 14 October 2015 and revoked on 31 March 2016. The decision to revoke the licence was affirmed on internal review on 11 July 2016 on the basis that it is not in the public interest for Mrs Crowther to continue to hold the licence and because the Commissioner was of the view that she may not personally exercise continuous and responsible control over firearms because of her domestic circumstances.
Mr and Mrs Crowther lodged appeals with the Tribunal on 19 August 2016 and a hearing was held in Armidale on 17 November 2016. Mr and Mrs Crowther gave evidence to the Tribunal as did Senior Constable Shaun Phillips.

The evidence before the Tribunal

Mr and Mrs Crowther moved sheep to the property "Garsdale" in February 2014 and moved there themselves in March of that year. They stated that the fences were in a bad way at the time, and, in some places, non-existent. They stated that, as they were only renting, it was not their responsibility to repair the fences. They acknowledge that some of their sheep have entered adjoining properties but say they have repaired large tracts of fencing since they arrived.
The respondent provided a number of police reports relating to Mr and Mrs Crowther. Some pre-date their move to Garsdale and some are complaints by Mr and Mrs Crowther against others. The applicants' representative questioned the relevance of some of the reports but in my view they go towards showing a pattern of behaviour by Mr Crowther in particular and give an indication of the relationships between the Crowthers and their neighbours. What the reports and other evidence before the Tribunal show is set out in the following paragraphs.

Leaving fire unattended

In 2012 Mr Crowther was issued with two infringement notices and fined $1,650 for leaving a fire unattended. The fire was lit at a time of high wind. Mr Crowther told the Tribunal that he left the fire for about 10 minutes to get water. The police report of the incident, however, indicates that the fire was left unattended for a longer period and was extinguished by the Rural Fire Service. By the time the Rural Fire Service arrived, the fire had spread and burnt some 10 acres of a travelling stock route. In relation to fire safety equipment, Mr Crowther is reported as telling Police: "I usually just bash it out with some brush."
Police had been called to this particular fire as there had been other fires lit by Mr Crowther which had spread to adjoining properties.

Straying stock

Police reports record that, dating back to 2008, the Crowthers have had problems with neighbours as their stock has strayed onto the neighbours' land. These complaints became more frequent after the Crowthers moved to Garsdale. There are allegations in the material that Mr Crowther deliberately cut fences to allow his stock onto neighbouring land but these (apart from the spear trap referred to below) are allegations only. Mr and Mrs Crowther both state that the fences were in a bad condition when they moved to Garsdale but they have done considerable repairs.
At the hearing Mr Crowther acknowledged that his sheep had strayed onto neighbouring lands. He also stated that he had installed a spear trap in the boundary fence with a neighbouring property without obtaining the agreement of the neighbour. He said the purpose of the trap was to allow his sheep which had strayed onto the neighbouring property to come back onto Garsdale.
Senior Constable Phillips told the Tribunal that, in addition to letting his stock roam onto other properties, Mr Crowther enters those properties and, in rounding up his stock, includes stock belonging to the owners. He also alleged that Mr Crowther takes feral goats from others' properties and sells them. Senior Constable Phillips also stated that because of disputes with Mr Crowther, one of his neighbours had installed surveillance cameras to monitor the boundary between the properties. These cameras had been shot at by unknown persons.
At the hearing Mr Crowther said he has fixed most of the issues with the sheep escaping. In relation to the goats, they do not belong to anybody in any event.

Animal cruelty

In October 2014 the RSPCA removed 11 horses belonging to the Crowthers as they were malnourished and in poor condition. At the time Mr Crowther acknowledged that he was aware of the declining health of the horses but was unable financially to care for them. It was also noted at the time that a large number of the Crowthers' sheep were in poor condition. The applicants' representative states that in times of drought there will be hardships with stock. Later reports indicate that the condition of the sheep improved after this action by the RSPCA.

Pesticide use

Mr and Mrs Crowther have admitted to using a pesticide, Triguvon, for a purpose contrary to the label in contravention of the Pesticides Act 1999. Mrs Crowther has completed a chemical training course and has an authority to use chemicals but Mr Crowther does not.
Triguvon is a pesticide used to control lice on stock. That Mr Crowther was using it for another purpose came to light when a neighbour complained that her dog had been poisoned and that the Crowthers had poisoned wedge tailed eagles. Mr Crowther admitted that he was spraying Triguvon in the eyes of dead lambs in order to kill wild pigs and dogs. The neighbour alleged that Mrs Crowther made admissions during a phone call they were poisoning wedge tailed eagles. Mr and Mrs Crowther strongly deny that they poisoned wedge tailed eagles. There is no direct evidence that the Crowthers deliberately poisoned wedge tailed eagles, although it is highly likely that an eagle or other bird would ingest the poison by feeding on the dead lambs.
At the hearing Mr Crowther gave evidence that he had used the pesticide in this way "for forty years". He said he was trained a "fair while ago" but did not have a "ticket" to use the pesticide. Mrs Crowther said that the use of Triguvon was a "one off". When it was pointed out to her that her husband had said he had been doing it for years, she said that maybe he had done it before she knew him.
Mr Crowther was issued with infringement notices by the Environment Protection Agency in relation to the contravention and fined. The applicants' representative states they have ceased using Triguvon for this purpose.

Damage to a gate

On 19 February 2016 Mr Crowther was found guilty in the Local Court of damaging a gate in October 2015 and ordered to replace the gate. No conviction was recorded.
As explained by Senior Constable Phillips at the hearing, access to Garsdale is along a Crown road through neighbouring property. There is a cattle grid and gate on the road which was installed by a previous owner of a neighbouring property and the current owner, Mr Steven Van Peype, has responsibility to maintain the grid and gate. The gate is not usually closed.
In a statement to police on 9 October 2015 Mr Van Peype stated that he had had problems with goats crossing the grid and walking onto the road and therefore on 7 October 2015 he had closed the gate to stop them getting out. He secured the latch but the gate was not locked. Later in the day he found the gate open and latched back to stay open, so he closed it again. He went out and came back later in the afternoon and saw the gate open and bent as though it had been rammed with a car. He closed the gate again.
Mr Van Peype stated that the next day he received an abusive telephone call from Mrs Crowther in which she said: "It was Robert that rammed the gate because you have no right to close the gate on a road. If you close it again, he will ram it open again." Mrs Crowther denies she was abusive during the telephone call. Not long after the telephone call Mr Van Peype saw Mr Crowther's ute driving down the access road from Garsdale. He states the ute drove straight into the gate and bent it back the opposite way.
When spoken to by Police on 14 October 2015 about the gate, Mrs Crowther, in response to being asked whether she raised any objection to the ramming of the gate, is recorded as saying that once her husband thinks he is in the right, there is no stopping him.
At the hearing both Mr and Mrs Crowther stated that Mr Crowther, who was aged 69 at the time, had some health issues which made it difficult for him to walk across the cattle grid to open and close the gate, as did Mrs Crowther. They also both stated that Mr Crowther just "bumped" the gate with his ute to open it. Mrs Crowther said that the gate had never been closed before during their time at Garsdale. Mr Crowther denied that he had driven at the gate at speed or that he deliberately intended to knock the gate off. He said he did not realise the gate did not swing both ways. However, in a recorded police interview at the time he admitted driving through the gate and angrily said he would continue driving through the gate if the neighbour closed it in future.
Senior Constable Phillips told the Tribunal it would have been possible for Mr and Mrs Crowther to use a gate which was adjacent to the one over the grid. Photographs show that the second gate is on flat land and would not have required Mr Crowther to cross a grid. The applicants state they would not have been able to use the second gate as to do so would have caused them to deviate from the Crown road and thus be liable to prosecution for trespass. While there may be some truth in this statement, it is also apparent that they could have sought permission to use the second gate, thus negating any issue of trespass.

Storage of firearm

On 14 October 2015 Senior Constable Phillips and another officer made an unannounced visit to the Crowthers. Mrs Crowther was at home but Mr Crowther was not. They conducted a safe storage inspection and found that a .22 rifle was on a shelf near the gun safe. The bolt, which had a live ammunition round affixed to the end of it, was also on the shelf. Two .222 rifles were appropriately stored in the gun safe. Evidence before the Tribunal was to the effect that these two rifles had not been used for many years and the only rifle in regular use was the .22.
When leaving the property the Police met Mr Crowther on the access road. He admitted to leaving the rifle on the shelf and to shooting at a snake which he said was bothering his dogs. He also informed Police that he had put .22 ammunition in an unlocked cupboard. Police found the ammunition upon returning to the premises.
When asked by Police when they were at the premises when the rifle was placed on the shelf, Mrs Crowther said that it was after Mr Crowther had been shooting at a snake and that this was on the day another officer had been there checking the gun safe. According to police records, this previous inspection occurred on 12 October 2015. Mrs Crowther wrote in a letter to Police dated 22 October 2015 that her husband had admitted to Police that he had put the rifle on top of the cupboard after he had been shooting at a snake "a couple of days before and had forgotten it". Mr Crowther told Police that he had put the gun back in the safe the night after the previous inspection.
According to Police when they met Mr Crowther on the access road, he admitted that he had left the rifle on the shelf and that it had been left unsecured when they went to church on 13 October 2015. However, in their written statements provided prior to the hearing, both Mr and Mrs Crowther stated that the rifle had been removed from the safe after they returned from church on 13 October 2015.
At the hearing Mr Crowther said that the rifle had been left out one night as they had had trouble with wild dogs attacking the lambs and he left it out in case they came back. He stated this was the night after the previous inspection (i.e. 12 October). Mrs Crowther, however, said the gun was not left out that night. Mr Crowther also stated that the rifle had been taken out of the safe the morning they went to church because he had some trouble with a snake. He took the bolt out and put the rifle and bolt up on the shelf. He put the ammunition box on the table and later put it in the cupboard. Mrs Crowther's evidence was that the rifle was not left out when they were away from home.
The evidence of Mr and Mrs Crowther is inconsistent in relation to how long the .22 rifle remained out of the gun safe. I consider the evidence they gave to police closer to the event to be what is more likely to have occurred. On balance, I therefore find that the rifle remained out of the safe from the night of 12 October to 14 October when Police attended and located the rifle up on a shelf. I also find that it was left unattended during the time the Crowthers went to church on 13 October 2015. It was also, presumably, left unattended while they slept at night. Not only was the rifle left out of the safe but the bolt and ammunition were also left unsecured.
On 19 February 2016 Mr Crowther was found guilty with no conviction recorded of a breach of the storage requirements in relation to the .22 rifle.

The gun safe

On 14 October 2015 when he visited the Crowthers, Senior Constable Phillips also formed the view that the gun safe did not meet safe storage requirements.
Mr and Mrs Crowther live in a shearing shed part of which has been converted to living quarters. Senior Constable Phillips stated that the safe weighs less than 150 kg, a fact not disputed by the applicants. The safe is connected by four roofing screws to a piece of marine plywood which in turn is screwed onto the rails of a wool bin. The rails of the wool bin are nailed to beams in the shed. The screws connecting the safe to the plywood are internal to the safe, while the screws connecting the plywood to the rails are external to the safe. A further four roofing screws connect the base of the safe to the floor.
Senior Constable Phillips states that the safe does not meet the requirements set out in the Firearms registry fact sheet on safe storage requirements. He states that it is unclear whether the base of the safe is screwed into the joists or bearers or whether it is simply screwed to the floor boards. It is also not clear whether the screws in the back of the safe are into the wool bin rails or just into the plywood. The screws are not coach bolts as recommended in the fact sheet and are roofing screws designed to secure tin to a roof. Senior Constable Phillips did acknowledge at the hearing that eight roofing screws would not be easily removed. He said he was not aware of the inspection which had occurred two days earlier and, if the only issue had been the safe, he would not have prosecuted Mr Crowther but would have recommended it be improved. I note that when the matter came before the Local Court one charge of not having approved storage was withdrawn and no evidence was offered in relation to a second charge.
Mr Crowther disputed that the safe could easily be removed by someone sawing through the rails of the wool bin (10 rails) and then using a jemmy to lever the safe off the floor. He also stated that the screws in the back of the safe went into the rails. He stated that, if the Police recommend that he make adjustments to the safe, he would comply.

Knowledge of laws relating to firearms

Mr Crowther said at the hearing that he had learnt from the firearms charges against him that he must lock up his firearms at all times when he wasn't using them. Mrs Crowther demonstrated a good knowledge of the relevant requirements about the safe storage of firearms.

Effect on livelihood of revocation of licences

Mrs Crowther told the Tribunal that they have suffered huge lamb losses since they have been unable to use firearms to control feral animals on the property. She said they do not lay baits as they do not believe in the use of 1080.
Mrs Crowther indicated that they had lost some 300 lambs since the guns were removed but did not offer any corroborating evidence to support her statements.

Is it in the public interest that the applicants retain their licences?

The firearms licences previously granted to Mr and Mrs Crowther have been revoked on the grounds that it is not in the public interest for each of them to continue to hold the licence. What is meant by the term "the public interest" has been discussed in many cases.
In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the "public interest": "…is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual."
In Cusumano v Commissioner of Police [2001] NSWADT 50, Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
In Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91 it was stated that the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence. It is, of course, trite to say that a failure to store firearms properly may have catastrophic consequences. The respondent has referred to the case of Rosenboom v Commissioner of Police [2006] NSWADT 10 where the applicant left a firearm unattended for a short time and the applicant's son killed himself.
The position of the respondent is that: 1. The history of disputes between the applicants and their neighbours and the large number of complaints from different neighbours cause concern about how they manage their stock and deal with complaints 2. Issues concerning animal cruelty and use of a pesticide contrary to the label show that the applicants are prepared to contravene the law when it suits them. 3. Mr Crowther's lighting of fires and leaving them unattended which causes damage to neighbouring property demonstrates an attitude of the Crowthers to suit themselves which risks serious conflict with neighbours. 4. The deliberate damaging of the gate of a neighbour demonstrates how little matters such as opening a gate can result in a violent and dramatic response by the applicants. It also demonstrates an inability to rationally deal with conflict between neighbours. 5. Failing to properly store firearms and ammunition when there was no real reason not to do so demonstrates a wilful or negligent approach to storage of firearms.
The respondent submits that the applicants have demonstrated an attitude of non-compliance with their legal obligations on a wide range of matters. This and their attitude to complying with the strict requirements concerning safe storage of firearms causes the Commissioner significant concerns about whether the applicants will in the future comply with the requirements of the Firearms Act. The respondent concedes that the applicants both have an interest and reason to possess firearms as primary producers but submits that it is not in the public interest for them to be licensed to possess and use firearms.
The applicants submit that they have made mistakes in the past but have learnt from them and will not make them again. The applicants' representative described the breach of the firearms storage requirements as "technical" and involving a low level of criminality. It is submitted that the Crowthers now understand that they must always secure the firearm and ammunition when not actually using it. It is also submitted that, by repairing the fences, they have removed the tensions surrounding the relationship with their neighbours.

Conclusions

The evidence before the Tribunal paints a picture of the Crowthers as people whose primary concerns are their own needs and they act with little regard for the consequences of their actions. This attitude is demonstrated by Mr Crowther lighting a fire which got out of control on a day with high winds and then leaving the fire unattended. It is apparent from the evidence that this was not a single occurrence as the reason Police were called to the fire was because previous fires lit by Mr Crowther had spread to adjoining properties.
Mr and Mrs Crowther acknowledged that the fences on Garsdale were in very poor repair but it appears they moved their sheep there in any event. They must have known that the sheep would stray onto neighbouring properties. To my mind, it is no defence to say they were only renting and the fences were not their responsibility. It was their responsibility to ensure their sheep did not stray onto other properties. The wandering stock clearly caused issues with neighbours to the point where one of them installed cameras to monitor the boundary.
The attitude of the Crowthers at hearing was that this was not their problem and the neighbours were unfriendly. The installation of the spear gate by Mr Crowther is another example of him acting unilaterally to solve a problem of his own making without engaging in any consultative way with the neighbouring landowner.
The incident whereby 11 horses were removed by the RSPCA because of their poor condition is of concern and indicative of an uncaring attitude. I accept the applicants' representative's statement that in drought animals can suffer hardship, but this incident goes beyond that and resulted in animal cruelty offences being committed.
The use of the pesticide Triguvon for an off label purpose raises a number of concerns. Mr Crowther stated he had been using the chemical in this way for a very long time. He also acknowledged that he has not undertaken the requisite training to use the chemical. Mrs Crowther has completed the training and should be well aware of her obligations with regard to the use of the chemical. Her statement that his was a "one off" use is clearly incorrect given Mr Crowther's evidence. I do not accept Mrs Crowther's statement that any previous use must have all occurred before she met Mr Crowther.
It is clear that Mr Crowther sprayed Triguvon in the eyes of dead lambs on a regular basis. This was done contrary to the label, without training and with what must have been full knowledge that other birds or animals could ingest the poison. Mrs Crowther condoned its use by her husband who did not hold the requisite, in his words, "ticket". They pursued this course of action because it was expedient without due regard for the law or any possible consequences.
It is clear that Mr Crowther was responsible for damage to the neighbour's gate and he has in fact been found guilty of causing the damage. On the basis of the evidence before the Tribunal I am satisfied that Mr Crowther did not merely bump the gate but drove at it in order to knock it out of the way, thus causing the damage. Both Mr and Mrs Crowther displayed behaviour at the time which was out of keeping with the nature of the incident. Neither appears to have made any attempt to find out why the gate was closed when it had not been in the past and whether there was another way to deal with the issue, including whether they could obtain permission to use the second gate.
It is of concern that the way both dealt with the closure of the gate was through an aggressive response, most particularly by Mr Crowther but also by Mrs Crowther in her telephone call to Mr Van Peype.
The evidence given by Mr and Mrs Crowther surrounding the length of time the .22 rifle was not kept in safe storage was most unsatisfactory and, in my view, designed to lessen the seriousness of the incident. The evidence of Mrs Crowther was particularly unhelpful. Mr Crowther was more candid in his evidence and admitted that the rifle was left out unattended while they went to church. It appears that this evidence was not given in the court proceedings.
It is of great concern that the rifle was left out of the gun safe and in close proximity to unsecured ammunition while the Crowthers were absent from the premises. This demonstrates either scant knowledge of their obligations as licence holders or a wilful disregard for those obligations. At the hearing Mrs Crowther demonstrated a good knowledge of her obligations while Mr Crowther said he has learnt from the experience.
I am mindful that there is evidence of only one instance where the firearm was not appropriately secured. However, the firearm and ammunition were left completely unsecured while they were absent from the property which could have had tragic consequences. Furthermore, Mr and Mrs Crowther displayed no remorse or contrition in their evidence given to the Tribunal. Indeed, parts of their evidence were designed to downplay the seriousness of the matters under discussion or involved obfuscation or were designed to paint another picture of events. They have not provided any character witnesses and the only available evidence is one of anger and disputation with neighbours.
Mr and Mrs Crowther, as primary producers, do have a legitimate reason to possess and use firearms. Mrs Crowther's evidence was that they have lost significant numbers of lambs since the firearms licences were revoked. However, the fact that they might suffer some hardship and inconvenience cannot outweigh the primary considerations of public safety.
Mr and Mrs Crowther's past disregard for the law, level of disputation with neighbours and uncaring attitude when combined with their lack of remorse do not convince me that they understand their obligations under the Act and that they have a commitment to following through on those obligations.
I am not satisfied on balance that their past conduct and or similar conduct will not be repeated. Accordingly taking into account all relevant considerations, in my view it is not in the public interest for either Mr Crowther or Mrs Crowther to continue to hold a firearms licence.

Order

The decision under review is affirmed. 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: 28 February 2017

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Judgment (15 paragraphs)

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