Kingston v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2017-11-21

REASONS FOR DECISION

This is an application for review of a decision to revoke a licence issued to the applicant under the Firearms Act 1996 (NSW) and Firearms Regulation 2006 (NSW). While the 2006 Regulation has since been repealed and replaced by the Firearms Regulation 2017 (NSW), the 2006 Regulation was in force at all relevant times.
On 2 April 2014 the applicant applied for a Category AB firearms licence. He applied on the basis of a genuine reason of recreational hunting/vermin control and sport/target shooting. On the application form he claimed that he satisfied those reasons by current membership of the Sporting Shooters Association. On 9 May 2014 the applicant was granted the licence.
On 22 February 2016 an incident took place at the home of the applicant and his wife. Police attended the premises. The applicant's firearms were removed by the police.
On 30 March 2016 the applicant's licence was suspended. On 23 September 2016 the licence was revoked by the Commissioner of Police.
On 8 November 2016 the applicant spoke to Case Management in the Police Firearms Registry about seeking an internal review.
On 12 December his internal review application was received by the Registry. The internal review was finalised on 27 April 2017. The decision to revoke the licence was upheld on the grounds that he had breached the licence conditions and the Firearms Act (s 24(2)(b)(ii) and (iii)), and it was not in the public interest for him to hold a licence (cl. 19 of the 2006 Regulation).

The evidence

On 22 February 2016 two incidents occurred at the applicant's home. As a result of those incidents his firearms were seized and his licence was revoked.
The applicant and his wife gave evidence as to the events leading up to those incidents. According to the evidence of the applicant he came home on that day at about 5 pm in the afternoon and decided to get out a gun to scare away the birds in his yard. No one else was at the premises at that time. He took a gun, which he described as a shotgun, from the storage facility in his house and took some ammunition which he placed in his pocket. He then left the gun near the door to the house while he put the dogs away and put on the sprinklers.
As he came back from doing this he noticed his parents-in-law had arrived and they sat on chairs on the patio. He then saw his wife had arrived home.
Sonia Kingston, the applicant's wife, gave evidence that they had argued earlier that day and she decided to "play a joke" on her husband with the gun. Mrs Kingston and Mr Kingston gave evidence that she picked it up near the door and either pointed it or waved it at him. She said she checked that it was unloaded first. She said that her husband got angry and took the gun from her.
The applicant said that he locked it up in the safe and put the ammunition in the locked box where it was stored. He did not use it as he had intended to do. His wife's evidence was that she did not see him put it away but she did not see it again that evening.
After this, all those present drank some alcohol, it is not clear how much. Later another argument took place between the applicant and the applicant's wife and her parents. The wife and her mother struck the applicant. He said he became angry, went for a drive and then came back and asked his parents-in-law to leave. His wife disagreed and they refused to leave. He called the police.
Two police attended in response to the call. They were Constable Jessica Mead and Constable Kristen Ah-See. According to their evidence, they were told over the police radio that there were no firearms at the premises, which was clearly incorrect. They did not know any guns were present until the applicant mentioned it, by saying that his wife had pointed a gun at him. The police officers said that both the applicant and his wife appeared to be moderately affected by alcohol.
The applicant said that he only said this because the police did not take his complaint seriously and would not direct his parents-in-law to leave the premises. He said that he said to them: "Would it make any difference if I said she pointed a gun at me?" He said he tried to make it seem more serious so that they would take his complaint seriously.
He said he then showed them the four guns in the safe and handed them to the police. He said he did this in the order the guns appear in Constable Ah-See's police notebook. Two guns are respectively described in the note book as an "Underover DBL BRL SG" and a 'Side by side DBL BRL SG" which I understand to refer to double barrel shotguns of different design.
Constable Mead said that they told him they would seize his firearms because of the domestic argument on the premises, and he could have them back after a 28 day cooling off period. She said that he got the safe key and showed them where the firearms were stored. The police witnesses said that they entered the house, which was dark, and that they saw three guns inside the safe when the applicant showed them the safe. One of the police officers was concerned about their safety. This is understandable as they were lead to believe there were no firearms on the property.
Constable Mead said the fourth gun was not in the safe. She did not recall exactly where it was, but said that the applicant drew their attention to it as they returned from the safe. She said the gun had a longer barrel and the applicant referred to it as a shotgun. Constable Ah-See said it was a double barrel shotgun. Constable Ah-See said the fourth gun was inside the house, towards the front door.
The evidence indicated that the ammunition was stored separately, not with the guns. The evidence indicated that the firearm in question was not loaded.
Constable Ah-See's police notebook records that the applicant said to police that he did not put the gun away that day because he was using it, that he used it on galahs, and that when his wife got the gun it was "next to the second door inside the shed". At the hearing he denied saying that he did not put the gun away and maintained that he had put the gun away earlier. He did, however, sign the notes in the police notebook. However there was some evidence that he has dyslexia. Also according to the police, he was affected by alcohol. The notebook records 4 firearms being taken - a slug gun, a rifle, an under/over double barrel shot gun and a side by side double barrel shotgun. The officers did not recall which of the four guns was outside the cabinet, but did remember that it was a shotgun.
A photograph of the interior of the house shows the door which has no wall or other structure or furniture obstructing it. A diagram drawn by Constable Mead shows a room and a wall near the door which is not shown in the photograph.
The respondent's case included the COPS entry made by the police officers concerning the incident. This recorded that the applicant had said to police that Mrs Kingston and the applicant's mother in law had hit the applicant to his face with an open hand. It also recorded that the applicant told the police about the firearm incident after they had been at the premises for about an hour.
The applicant later made a complaint about the conduct of the police concerned. He complained that they had failed to investigate his allegation of assault and the manner in which they spoke to him. His complaint was upheld.
There was evidence before the Tribunal that he had recently undergone refresher training and now understood his responsibilities as a firearms owner. Formerly he believed the gun was under his supervision if he was in the house.

The issues before the Tribunal

The decision to revoke the licence was a reviewable decision (s 74(1) of the Firearms Act). Under s 63(1) and (2) of the Administrative Decisions Review Act 1997, the Tribunal may determine an application for an administrative review of an administratively reviewable decision, and is to decide what the correct and preferable decision is having regard to the material then before it. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the Commissioner of Police.
In determining what is the correct and preferable decision, it is necessary to determine whether any of the following grounds for revocation of the licence are established: 1. whether the applicant has contravened any provision of the Firearms Act or Regulation (s 24(2)(b)(ii) of the Act); 2. whether the applicant contravened any condition of the licence 24(2)(b)(iii) of the Firearms Act); 3. whether the Tribunal should be satisfied that it is not in the public interest for the licensee to continue to hold the licence (cl 19 of the Firearms Regulation).

Did the applicant breach any provision of the Firearms Act or Regulation?

Section 40 provides that when any firearm held under a Category AB licence is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable.
The applicant has admitted that he left the gun near the door of his house while he was locking up his dogs and putting on the sprinklers. This was in breach of s 40.
The respondent submits that the breach continued after the applicant's wife and parents-in-law arrived and was more serious, as the gun was left outside the cabinet while those present consumed alcohol.
The applicant denies this. On this point the evidence of the applicant and his wife is in direct conflict with the evidence of the police officers. Constable Ah-See did not record in her note book that one of the guns was outside the safe; however she did record that the applicant said that he left the gun out. Constable Mead did not make any notes at the time. The COPS entry does not record where the shotgun was located by police at the premises but records that they seized all the firearms.
The applicant submitted that the officers' evidence should be disbelieved as the applicant's complaint about their conduct was upheld. Also he submitted that the diagram drawn by Constable Mead from memory of where the gun was found, is not reliable as it shows a wall which does not exist.
I am satisfied that the diagram is not entirely accurate, however, the issue is really whether the firearm was outside the safe when the police were at the premises. I am not persuaded that the police had any motive to falsify what the applicant said to them as recorded in the notebook. Their seizure of the guns was justified at the time and I am not satisfied that there is any motive for them to lie.
Moreover their own direct evidence at the hearing was that the shotgun was not in the safe. Given the circumstances that they were surprised to find that there were any guns on the property, I infer that this is a fact which would have been impressed in their memories.
The only evidence that it was in the safe was the respondent's own evidence. While the applicant's wife said she did not see the gun outside the safe after her husband took it from her, if it had been behind the door, however, as Constable Mead said, it may not have been fully visible.
On balance I think the constables' evidence of where the gun was is more credible than the evidence of the applicant, who was affected by alcohol and has conceded he did not realise leaving a firearm out of the secure storage was unlawful if he was present in the property. On the basis of the evidence I am reasonably satisfied that the shotgun which was taken out by the applicant that afternoon had not been placed back in the safe when the police arrived. This makes the contravention more serious.

Did the applicant breach a condition concerning the safekeeping of firearms?

Section 19(2)(a) provides that each licence is subject to a condition that the licensee must comply with the relevant safe keeping and storage requirements under the Act.
It is evident from the findings of fact above that the applicant did not comply with the requirements in s 40.

Did the applicant breach the condition relating to his genuine reason for holding a licence?

The applicant held his licence on the sole basis of two genuine reasons: sport/target shooting and recreational hunting/vermin control. He relied on his membership of the Sporting Shooters Association of Australia (SSAA) as evidence of both reasons. In order to satisfy the sport/target shooting requirement when applying, the applicant must be a current member of a shooting club approved by the Commissioner, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.
In order to meet the recreational hunting/vermin control requirement when applying, the applicant must: 1. be the owner or occupier of rural land, or 2. produce proof of permission to shoot on rural land, or 3. be a current member of a hunting club approved by the Commissioner in accordance with the regulations.
The applicant relied on his membership of the SSAA to meet both requirements. He did not rely on owning or occupying rural land for the reason of recreational hunting/vermin control, although he gave evidence in these proceedings that he occupies a property of 50 acres.
As a consequence of relying on his membership of the SSAA for the genuine reason of recreational hunting/shooting, the licence had a condition under cl. 29 that the applicant comply with clause 96 (1)(c).
Clause 96(1)(c) states that the person must, over any period of 12 months, participate in no less than 2 events (approved by any approved hunting club) involving hunting, shooting or firearms safety training.
The applicant conceded that he had never attended the club. A letter dated 26 July 2017 from the SSAA was in evidence which stated that according to available records he had not attended any range for shooting for the past three years.
Moreover it was apparent from his evidence and that of his wife, that he had conducted shooting on his own land.
The applicant submits that his conduct is permitted by cl. 30 of the Regulation. Clause 30(1) provides that if a licensee who is a member of an approved hunting club has established recreational hunting/vermin control as a genuine reason for being issued with the licence, the licence authorises the member to use a firearm: to participate in shooting activities other than those approved by the approved hunting club, but only on the land for which: (i) the licensee has been given the written permission of the owner or occupier (or of an officer of an agency referred to in the genuine reason of recreational hunting/vermin control) to shoot the game described in the permission, or (ii) the licensee has been given permission, as verified by statutory declaration, by such owner, occupier or agency to shoot the game described in the statutory declaration."
The applicant submits that as the applicant is the landowner of the land, the written permission is not required. The applicant also relies on clause 31: 31 Practising at approved ranges (1) The authority conferred by a licence issued for the genuine reason of recreational hunting/vermin control, primary production, vertebrate pest animal control or animal welfare extends to the use of a firearm by the licensee at an approved shooting range, on such occasions as may reasonably be required, for the purposes of: (a) sighting in the firearm, which includes the sight alignment or tuning of the firearm, familiarisation with or testing of ammunition and practising on targets, or (b) in the case of a shotgun - patterning the shotgun, which includes the adjusting or aligning of the shotgun, familiarisation with or testing of ammunition and practising on stationary or moving clay targets. (2) Nothing in this clause authorises: (a) the holder of a licence referred to in this clause to participate in competitions or activities conducted by a shooting club that require the use of a firearm (except those activities referred to in subclause (1)), or (b) the use of a shooting range otherwise than in accordance with the approval of the shooting range, including any conditions subject to which the approval was granted.
I do not accept this submission. Clause 31 authorises additional activities at a shooting range. Clause 30, in my view, does not and should not be interpreted to apply to owners or occupiers of land, as such persons do not need to rely upon membership of a club for their licence. These provisions do not overcome the requirement in clauses 29 and 96(1)(c). I find that the applicant breached the condition.

Is it contrary to the public interest for the applicant to hold a licence?

As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] with regard to security licensing legislation, 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."
That interpretation has been applied to firearms cases (Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 and Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16.)
In Constantin at [33] the Appeal Panel stated concerning the Act: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police [2001] NSWADT 50 it was held that the principles and objects of the Firearms Act were relevant to exercising the discretion to revoke a licence. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the Appeal Panel said that matters of general public policy informed by the principles and objectives of the Act were relevant to the discretion.
The respondent has submitted that the applicant made false claims against the officers concerned and it is not in the public interest for such a person to have a firearms licence. However, the applicant's complaint was upheld against the police and in these circumstances I do not find this factor relevant to the public interest.
The applicant has submitted that there is no risk to public safety.
I have found that the applicant left his unloaded gun unattended for a period of time with other people on the premises while alcohol was consumed and, on his evidence, there was an argument resulting in physical assault. He left it unsecured after his wife, who was unlicensed, had obtained possession of it. There was no dispute that his other three firearms and ammunition were securely stored. I am satisfied that he now understands the possible consequences of leaving his firearm unattended. However, it is of concern that the possible risks of leaving it unsecured in those circumstances did not make him take action to secure it.
As stated in Ward v Commissioner of Police at [28]: "Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm."
The applicant relies on the decision in Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91. In that case the applicant was convicted of failure to keep his firearms safely and was fined. The Judicial Member said: "The power to revoke under s 24(2)(d) and cl 17 relating to public interest is not a mandatory power requiring revocation upon certain criteria being met, for example 'if X offence is committed by the licensee, it is not in the public interest for the licensee to continue to hold the licence'. Rather, it is a discretionary power and one for which the Act provides no express guidance as to its exercise. 32 As the Parliament has not chosen to make mandatory the power to revoke the licence in circumstances such as Mr Yaghi's, but rather has provided the Commissioner with a discretionary power, it is reasonable to conclude that not all contraventions or breaches warrant the exercise of the power to revoke. There must be something more to be taken into account. It is suggested in another Tribunal decision concerning the Act that there may be a trivial or excusable contravention or breach which may not warrant the exercise of the discretion against a licensee, whereas a fundamental breach may (see Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at para 25)." (at [31-32])
Other cases cited include Uzelac v Commissioner of Police [2003] NSWADT 226; Webb v Commissioner of Police [2004] NSWADT 110 and Ping Kee v Commissioner of NSW Police Force [2017] NSWCATAD 110.
In Webb, the Tribunal found that the applicant's appreciation of the importance of strict observance of his obligations as a firearms licensee had been strengthened by the incidents against him and he had shown genuine remorse, therefore the Tribunal could be satisfied that he could be trusted to have access to firearms. In this case the applicant does not admit the full extent of the breaches.
In Ping Kee, the facts concerned adequacy of storage. In the present case, there is no question that the storage was adequate, however the issue was whether it was employed properly.
In Uzelac, the evidence was that the firearms were stored with the ammunition, which was contrary to the legislation. The Tribunal accepted that the applicant in that case believed it was acceptable to store firearms and ammunition together given that on three previous occasions police officers had made no adverse comment, nor taken any action, in relation to that mode of storage. This was held to explain his conduct to some extent. Also the storage deficiencies had been remedied by the time of the hearing. In this case there is no such explanation for the conduct. The applicant said he had a mistaken belief that as long as he supervised the firearm it was acceptable for it to be out of the storage. If I accept this evidence, his conduct still created a risk to safety, as he left the premises for a period and while he was at the premises, he consumed alcohol and argued with family members.
The case law makes it clear, that in exercising its discretion, the Tribunal should have regard to the principles and purpose of the legislation. These include to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety; and to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms.
In relation to the breach of the condition to attend the shooting range alone, given that the applicant could rely on occupying or owning land as a genuine reason, I would have found that the discretion should be exercised in the applicant's favour, subject to him notifying the respondent of the change in reason. There is no obvious safety issue to be considered.
In relation to the breach of the legislative requirements and conditions regarding the safe keeping of the firearm, the applicant's own evidence and the circumstances of the incident, I cannot be satisfied that the discretion should be exercised in the applicant's favour as this would not be compatible with the overriding need to ensure public safety. In my view it would be contrary to the public interest for the applicant to have a firearms licence.
Given this finding that it is not in the public interest for the applicant to hold a firearms licence, overall the discretion should be exercised against the applicant. The Commissioner's decision to revoke the licence should be affirmed.

Order 1. 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: 01 March 2018

Firearms Regulation 2006(NSW)

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