Leviny v Commissioner of Police, NSW Police Force

reasons for decision 1On 2 August 2013 the appellant, Mr Leviny, applied under the Firearms Act 1996 (the Act) for a firearms licence Category A. The licensing scheme is administered by the respondent, the Commissioner of Police, through the Firearms Registry. 2Category A covers conventional rifles and shotguns, with special types such as centre-fire, pump-action and self-loading placed in other categories. Mr Leviny wishes to register one firearm only to the licence, a .22 rifle. 3We will not set out the full text of the provisions of the Act applicable to this case. They are set out in the reasons under appeal at para [11] ff. 4In summary, the provisions are s 3(1) (the objects clause, which refers among other matters to the key object of promoting public safety), s 11(7) (the Commissioner's power to refuse a licence application if issue of the licence would be contrary to the public interest), and the safe storage requirements, ss 39, 40. 5On 24 October 2013 the Commissioner's delegate refused Mr Leviny's application. Mr Leviny applied for an internal review. The reviewer confirmed the original decision. The reasons given in the internal review decision issued 3 February 2014 are more detailed than the reasons given in the notice of 24 October 2013. 6In respect of a matter of importance in this case, the internal review reasons accepted, on the basis of medical evidence furnished by Mr Leviny, that there are no concerns with his present mental fitness to possess and use a firearm. The internal review reasons confined the decision to refuse him a licence under s 11(7) to the issue of whether Mr Leviny properly understood the safe storage provisions of the Act and had an appreciation of the importance of abiding by those requirements. The reviewer expressed a lack of satisfaction as to these matters. More specifically, the reviewer stated that s/he could not be satisfied that, if given a further opportunity to hold a firearms licence, Mr Leviny would store firearms in a cupboard (instead of the locked safe) when they are not actually being used. The reviewer expressed the opinion that an omission of this kind would place public safety at risk. 7Mr Leviny applied for external review by the Tribunal. The Tribunal affirmed the decision. Mr Leviny now appeals. 8The case has a wider context. Mr Leviny has been a keen user of firearms since he was a boy, more than 60 years ago. As a farmer and grazier he has used firearms for pest control and for humane killing of distressed animals. He has also been a successful competition shooter. He held for many years until 2012, without concern, the required licences under the various firearms licensing schemes. 9After an incident on 7 June 2012, the local police suspended his licence, and confiscated two rifles (a .22 and a .303). On 18 June 2012 the Commissioner proceeded to revoke the licence. He applied for review, ultimately to the Tribunal. The Tribunal affirmed the Commissioner's decision, and the Appeal Panel subsequently dismissed his appeal against that decision on 23 July 2013: see Leviny v Commissioner of Police, NSW Police Force [2013] NSWADTAP 34. 10In that case the Commissioner pressed two grounds for revocation (attempted self-harm, unsatisfactory safe storage practices). The Tribunal at first instance (constituted by Mr S Montgomery, Judicial Member) decided the case by reference to the safe storage ground, and did not make a final ruling in relation to the alleged act of attempted self-harm, the subject of contested evidence. The Appeal Panel, accordingly, confined its consideration of his appeal to the Tribunal's decision on the safe storage ground, and being satisfied with the Tribunal's reasons in that respect, did not traverse the other ground. 11In relation to the current review application, the Tribunal (now constituted by Professor G deQ Walker, Senior Member) heard evidence from Mr Leviny about the events of the days 7-8 June 2012, about the safe storage concerns they were said to reveal, and about his present understanding of his legal obligations, and his practical arrangements and attitude to ensuring that he comply with those obligations. The Tribunal was not satisfied by Mr Leviny's evidence. It referred to a number of matters of concern, the most important of which was its lack of confidence in him having a real commitment to adhere to the strict rules that now apply to the safekeeping of rifles. While he said he had appropriate lock-up receptacles for storage, his attitude to the circumstances in which it was necessary to put aside a weapon and lock it up was relaxed and permissive. He continued, for example, to defend as acceptable his behaviour on the night of 7 June 2012 when he left his rifle in a bedroom cupboard for over an hour, while he answered the phone, worked at his computer and joined his wife for the evening meal. (He used the bedroom window as a location from which to fire at hares and other pests.) 12At the appeal hearing, Mr Mattson for the Commissioner, drew attention to cross-examination before the Tribunal in which Mr Leviny gave a number of answers that could be seen as having a selective, and somewhat indifferent, view about the need to comply strictly with the modern standards for safekeeping. He gave, for example, a self-serving interpretation of the circumstances in which a firearm could be said to be in 'use' and therefore, necessarily, not subject to the requirements for safe storage during that period. 13An appeal against a Tribunal decision may be made, as of right, on a 'question of law', and may, with the leave of the Appeal Panel, extend to 'other grounds', i.e. grounds that do not raise questions of law: see Civil and Administrative Tribunal Act 2014, s 80(2)(b). 14Mr Leviny's notice of appeal referred to a number of matters, and he sought leave for the appeal to be extended to 'other grounds'. He took issue with a number of the observations and conclusions of the Tribunal below. 15It is plain that he is indignant that, throughout the history of the two proceedings, there has been no resolution by the Tribunal of the opinion of the police officers who have made decisions in relation to him that he engaged in an act of attempted self-harm on the night of 7 June 2012 (the two decisions made by the respondent that were the subject of the previous review application, and the first of the two decisions made by the respondent which are the subject of the present review application). Understandably, he sees these opinions as seriously harming his good name and reputation. He considers that their account of events is mistaken in several critical respects, including in relation to the interpretation placed on his wife's conduct on the evening of 7 June in surreptitiously removing the weapons from his control, and contacting the family doctor the next day. He also considers that his overall good record as a safe user of firearms in the past has not been given sufficient weight, and that insufficient recognition has been given to his expressions of remorse for what happened on that night, and his assurances of good conduct in future. 16In reply to Mr Leviny's notice of appeal, the Commissioner contended that none of the several points it raised identified any 'question of law'. Mr Leviny is unrepresented and not legally trained. Again understandably, he responded that it was not clear to him which of his criticisms could be regarded as raising a question of law and which did not. 17We will not retail at length here the contents of the notice of appeal. In our view, the Commissioner's submission was correct. The notice of appeal did not expressly identify any questions of law, and in our view none of the matters raised by the notice of appeal raise questions of law. All the matters raised by Mr Leviny went to the merits of the Tribunal's decision. 18While it is correct, as Mr Leviny pointed out, that the decision of 24 October 2013 did refer to his conduct on the night of 7 June 2012 and gave attempted self-harm issue as a ground for refusal, the Commissioner's final decision of 3 February 2014 made on internal review did not rely on that ground. As we have already noted, the Commissioner's reasons accepted that there was no longer any mental fitness concern. Accordingly, the Tribunal only had before it the safe storage ground. 19As the Commissioner no longer relies on the mental unfitness as a ground for refusal, it would be wrong of the Appeal Panel to examine the question of whether Mr Leviny engaged in an act of attempted self-harm on 7 June 2012. The matter is now outside the scope of these proceedings. 20As to the Tribunal's reasons on the safe storage issue, they are detailed and considered. The reasons accept, without demur, that Mr Leviny was a licensee in good standing for many years, and that he has a general knowledge of the law's safe storage requirements, and understands that they have been toughened on a number of occasions since 1996. But the Tribunal did express concern over whether he genuinely accepted that he should strictly comply with the new rules. 21As occurred before the Tribunal, Mr Leviny made a number of statements at the appeal hearing which suggested that the laws should not apply with equal rigour to a case such as his, and referred to such circumstances as the isolated location of his farm, the unlikelihood of thieves coming to the property, and the reasonableness of not taking measures in some circumstances to restrict the access of his wife, an unlicensed person, to his weapons, because he trusted her. He restated his wide view of when a weapon can be said to be 'in use' and therefore not required to be locked up. Section 40(1)(a) governs this matter. It- is drafted narrowly, and requires the weapon to be locked up in the way set out in the provision when 'not actually being used or carried' (emphasis added). 22He also referred to a statement he had obtained from a gun club secretary, Mr Brendon Colson, and the positive comments it contained in relation to his experience with weapons, and his commitment to safe storage practices. His daughter, Fiona, accompanied him at the hearing, and she gave from the bar table a testimonial in support of her father. She asked for some recognition to be given to his long history, and that some leeway be shown to a person who has had to deal with the transition from the once unregulated world of use and possession of firearms by farmers to one that is now very strictly regulated. 23In our view these are fresh matters that the administrator, the Commissioner, should have the opportunity to appraise in due course. They are not matters that would justify any interference with a well-considered, and comprehensive, decision by the Tribunal below. 24Where there is no error of law in the Tribunal's approach to its task, there should be great care exercised before allowing an appeal to be extended to the merits. 25In this instance we have canvassed a number of Mr Leviny's points as to the merits, but none of them, with respect, warrant taking the step of formally extending the appeal to the merits and, therefore, submitting the application for review to a rehearing, with the consequent demands that would place on the administrator. 26Finally, we wish to reinforce a point made to Mr Leviny at hearing. While s 39(1) of the Act requires a person who possesses or uses a firearm to 'take all reasonable precautions' to ensure (a) 'its safekeeping', (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', the question of what is 'reasonable' is not resolved simply by having regard to the subjective explanations of the licence holder as to what he or she might regard as 'reasonable'. It is a standard to be applied in an objective way. In making that objective assessment the mandatory standards laid down in the sections that follow for the different categories of weapon must, at the least, be satisfied. For Category A weapons they are the standards set out in s 40. As noted above, among the s 40 standards is one in relation to the storage of firearms when 'not actually being used or carried' (s 40(1)(a)); and there is a requirement for separate storage of ammunition (s 40(1)(d)). The Commissioner, and the Tribunal on review, was not satisfied that these requirements had been observed in the period 7-8 June 2012, and given the self-justificatory nature of many of Mr Leviny's answers in evidence, the Tribunal remained concerned that he still did not accept that these standards should apply to him in his circumstances. 27In our view, Mr Leviny has continued to manifest a lack of insight into the need for him, in his circumstances, to be able to be trusted to follow storage practices that comply with current standards. 28After his case failed before the Appeal Panel on the last occasion he applied within ten days for a new licence. He did bring an independent and credible report from a consulting psychologist to that process which led to the Commissioner narrowing his grounds for objection to the grant of a new licence. 29It is clear that at this stage those that have reviewed his applications for restoration of a licence (the Commissioner's officers and the Tribunal members on review) remain sceptical of his personal assertions that he will comply strictly in future. For any progress to be achieved by him, he will need to produce independent, credible reports and testimonials, that can be tested by the Commissioner if so desired, on the question of his preparedness to comply strictly with the new standards. He will also have to submit his facilities to inspection, if so desired.