Whalan v Commissioner of Police, NSW Police Force

The respondent's evidence

1. The respondent relied upon the following facts, which were not disputed by the applicant, in support of the grounds of refusal. 1. The applicant held a category ABG firearms licence between 1999 and 2012. 2. Between 2002 and 2012 the applicant was authorised as a firearms dealer employee of her husband, Robert Glendwyr Whalan, who held a firearms dealer licence. 3. On 25 July 2001 the applicant was found guilty of driving with a high range concentration of blood alcohol. She was placed on a bond under s 10 of the Crimes (Administration of Sentences) Act 1999 for 12 months and no conviction was recorded. 4. An inspection and audit by police took place at the applicant's property in November 2012 in which they audited all the firearms (over 1400) possessed by the applicant and her husband, whether personally or as part of the business. As a result the applicant was charged with 3 counts of "Not prevent loss of firearm" contrary to s 39(1)(b) of the Firearms Act relating to three firearms which the police alleged were unaccounted for after the audit. 5. The applicant's husband was also charged with a number of offences relating to keeping unregistered firearms and storage of firearms. 6. The applicant's licence as well as her husband's licence was suspended following that audit and all the firearms in their possession were seized. 7. On 22 October 2013 the applicant's firearms licence was revoked. 8. The charges against the applicant were withdrawn on 8 April 2016. 9. On 8 April 2016 the applicant's husband pleaded guilty to a number of firearms offences including possessing an unregistered firearm, not preventing theft or loss of a firearm and possessing or using a prohibited firearm without a permit.
2. The respondent also relied on evidence that police had formed the view on three separate occasions that the applicant had been acting in an irrational manner and as if affected by alcohol. The first occasion was on 15 April 2007 when the applicant had spoken to police on the telephone following a dispute with her son in law over property. The evidence was contained in a COPS report and the officer concerned did not give evidence.
3. Evidence was also given by Sergeant Bree Longley that the applicant appeared to her to be intoxicated when she spoke to her at her property on 12 November 2012 in preparation for the audit and again on 26 November 2012 at her property when the audit commenced. She said she formed this view based on the applicant's mannerisms, overly friendly and "chatty" behaviour, and also said she could smell alcohol on her breath.
4. Sergeant Longley also gave evidence of the conduct of the audit and the manner in which the firearms were stored on the premises. She stated that during the seizure of the firearms, each firearm was given an evidence sticker with a unique number and an officer would record the serial number, make and model of the firearm. If unsure of the details, this was checked with the applicant's husband. The firearms were removed and taken to Bathurst Police Station. A large number of the seized firearms were disposed of in 2013 to a dealer nominated by the applicant's husband.
5. Evidence was provided by Detective Jeffrey Sinton, who took over the investigation of the offences, that three firearms which police alleged were unaccounted for during the audit - a .22 calibre rifle and two 12 gauge shotguns - were missing after the audit, are still missing and are still registered to the applicant.
6. Detective Sinton stated that the firearms which were seized by police were disposed of, including by sale, and were no longer held by police. He admitted that there had been some errors made during the audit because the serial numbers on some firearms were difficult to read. He was satisfied, however, from his own investigations, that these errors did not affect the three firearms referred to.
7. As part of negotiations with the applicant's legal representative at the time she was charged, the applicant produced a document which she claimed had been given to her by a firearms dealer, Mr Clem Stevenson, and which listed those firearms as being in his possession. However Detective Sinton stated that this document was a list produced by the applicant, not Mr Stevenson. Another document which the applicant claimed was a printout of the list of firearms stored by police after the seizure, showing the firearms said to be missing, was in fact verified by Senior Constable Jackson at Detective Sinton's request as a spreadsheet from the Firearms Registry showing what firearms were registered as being in the Whalans' possession.
8. Detective Sinton said, however, that the charges against the applicant had been withdrawn because the applicant's husband had pleaded guilty to multiple charges and because a key police witness was unavailable to give evidence in the applicant's case. In the absence of that witness, and given that there had been some errors in the audit records, it was felt that the charge could not be proved beyond a reasonable doubt.
9. Detective Sinton stated that he had recently identified four additional firearms listed as registered to the applicant which he believed were still unaccounted for. These four firearms were listed against the applicant's licence. He identified these as a 12 gauge Cashmore firearm, a 12 gauge Parker Bros firearm, a 12 gauge Hollis firearm and a Leige Arms Co. shotgun.
10. Senior Constable Wayne Jackson was present during the audit and gave evidence regarding the conduct of the audit. He had an Excel database on a laptop computer which listed all the firearms which the applicant or her husband had informed the Firearms Registry they had acquired, less any notified as disposed of. The police officers present brought the firearms they found to Senior Constable Jackson and read out the serial number. He would check the serial number against the database and confirm its identity by reference to its make, model, calibre, action, and other features.
11. Once the identity of the firearm was confirmed, this would be entered in the database. He said that while some firearms were stored on the premises in compliance with the legislation, others were not. In particular firearms which were displayed on racks on the walls of a residential part of the applicant's home did not comply. These were mostly pre-1900 firearms but he believed two were later than 1900.
12. Firearms earlier than 1900 do not require registration but safe storage requirements which apply to them. Photographs of the rooms in which firearms were stored, said to be taken on the first day of the audit, were tendered by the respondent. These showed firearms mounted on the wall on racks in a room with blue walls. Sergeant Longley said this room contained a mixture of pre1900 and post 1900 firearms. She said the door to the room had a lock but otherwise the storage did not comply with the legislation. Other historic firearms were displayed on racks in another room which she referred to as the dining room. She said the storage of the firearms in the strong room was satisfactory.
13. Sergeant Jackson said at the end of the first day of the audit, police determined that on the basis of the apparent breaches of legislation, including storage and record keeping, the licences of the applicant and her husband should be suspended and the firearms seized.
14. The respondent also submitted that as an employee in the firearms dealership, the applicant had failed to perform her obligations under the legislation. The respondent relied upon a record of interview between Mr Whalan and police dated 29 November 2012, in which Mr Whalan said he had problems with reading, and that he would get the applicant to "check it for sure", referring to the documentation he was required to keep concerning his dealings in firearms. He said he had not been diagnosed with dyslexia. When asked "who does all your bookwork for you?" he replied "I do" but added that another employee might help him when he was selling at a fair. Sergeant Longley provided hearsay evidence that the applicant had stated to her that her husband was dyslexic and she helped him, but that it had not been formally diagnosed.

The applicant's evidence

1. The applicant stated that she lived on her husband's property which together with an adjacent property, was 760 acres in size, and located approximately 12 kilometres from Oberon. The adjacent property was leased to relatives of her husband.
2. The applicant denied that she had been intoxicated on the three occasions when police alleged. She said her former husband had been a police officer and had been violent towards her; as a result she had uncontrollable shaking when police were present. She said that on the day of the audit she was worried about the audit and had taken medication for hayfever. She said due to her anxiety she took a small amount of brandy to stop her trembling. She said she had not been treated for alcohol abuse, but had seen a psychiatrist on three occasions.
3. She said she and her husband used firearms to kill sheep occasionally for their own use which were provided to them by a relative. She was experienced in the use of firearms and had used them since she was 12 years old. She said she had used firearms in the past to put down an animal or kill a snake, although this was rare. She said her involvement in the firearms business was limited to helping with sales at fairs, making signs, securing the firearms and packing them. She said her husband was not dyslexic, but had trouble with spelling; she said usually her husband did the paperwork but she helped with checking other people's writing and spelling. She was not involved in storing the guns, this was done by her husband. She had not possessed a key to the strong room and if she had needed access to a gun, she had to ask her husband to get it for her. She said if her licence was restored she would ask her husband to put her guns in a secure cupboard in the garage so she could access it.
4. She said that another police officer, Sergeant Graham Barlow, had been present during the audit at their property and had ordered her out of the kitchen where she was sitting. This was supported by a statement made by her husband. This statement recorded that Sergeant Barlow also said that he was taking all the applicant's firearms and that they had to go onto his licence and he should not tell her. Mr Whalan also stated that Sergeant Barlow spoke of the applicant having an alcohol problem and it was not in the public interest for her to have a licence. Mr Whalan said that he had replied that she had once had a problem but they had sorted it out.
5. Sergeant Longley said that this incident did not happen in the kitchen and she was present when Sergeant Barlow ordered the applicant out because she was interrupting the audit. Sergeant Barlow did not give evidence.
6. The applicant stated that the firearms which were on racks on the wall were all flintlock firearms and did not require registration and were secured to the wall by steel cable. The room they were in had no windows and a movement detector, and a lockable door.
7. On examination of the photographs I could not perceive any cable attached to the racks or firearms in the room.
8. She disputed the accuracy of the audit and the lists of firearms produced by police, stating that they could not recognise the firearms they were handling. She stated that the audit had also been affected because Senior Constable Whalan's computer could not get an internet signal. Senior Constable Whalan said the database was standalone and did not require an internet connection.
9. In relation to the three firearms which were the subject of the withdrawn charge, the applicant at first said that she assumed they were her husband's firearms. She then stated that she had seven firearms when she came to live with her husband. In a statement, she stated she had 41 firearms. As stated above, she claimed that the three which were the subject of the charge had been sold by police to the firearms dealer.
10. It became apparent late in the hearing that the applicant had not been notified prior to the hearing of the details of the four additional firearms which the respondent claimed were missing and were relied on as evidence as to whether the applicant was a fit and proper person to hold a licence. The internal review decision referred to seven firearms but did not list them. Consequently the applicant appeared to have assumed that this was a reference to a further seven firearms. She stated in a statement: The issue of these 7 firearms plus another 3 has been raised by Firearms Licensing section. No police officer asked me about these firearms or queried there abouts (sic) [except the Ivor and Johnson .410] or stated what they were. However I can make a few educated guesses as to which firearms they are.
11. She then lists a number of firearms but none of them correspond to the four described by Detective Sinton.

Issues for determination

1. The Tribunal's role on administrative review is to determine what the correct and preferable decision is having regard to the material before it (s 63(1) Administrative Decisions Review Act 1997). The Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Commissioner's delegate in this case. The Tribunal may decide to affirm or vary the decision, set aside the decision and make another decision in substitution, or set aside the decision and remit the matter for reconsideration by the decision-maker (s 63(2) and (3)).
2. Administrative review powers must be exercised within the scope of the legislation. 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. In addition, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest (s 11(3) and (7)) Firearms Act.)
3. Whether a person is fit and proper has been said to relate to honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake (Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28). In the current case, the applicant is seeking a personal firearms licence and does not seek a dealer's licence. She seeks the licence for the purposes of hunting and vermin control and collecting. The respondent submits that her knowledge of the safe storage and registration requirements and her ability to safely store and be responsible for the firearms is deficient, despite her having held a licence for over 12 years and being involved in a firearms dealing business.
4. Section 11 also requires satisfaction that the applicant can be trusted to have possession of firearms without danger to public safety. Under s 39, a person in possession of a firearm must take all reasonable precautions to ensure its safe keeping and that it is not stolen or lost. The knowledge and ability required to safely store firearms, ensure they are not lost or stolen, and comply with registration requirements are relevant to public safety.
5. 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.
6. That definition 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.)
7. In Constantin at [33] the Appeal Panel stated: 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.

Factual findings

1. The applicant was 73 years of age in 2017 and has never been convicted of any offence.
2. There was some dispute over the extent of the applicant's role in her husband's business and how much of the responsibility for the deficiencies in record-keeping or storage for which he was convicted could be attributed to her. As an authorised employee she had the authority to perform those tasks. I am not satisfied, however, that she undertook any storage responsibilities. Her evidence was that her husband was responsible for storage and she could not access her own firearms without his assistance.
3. As to the record keeping, her evidence was that she only did this rarely. Her husband said that she "checked" what he did. In my view the respondent has not established on the balance of probabilities that the applicant was in charge of the record keeping for the business. That being the case, it cannot be established that the applicant was responsible for the situation where a number of firearms registered to her husband were unaccounted for. The extent to which she may have contributed to it was unclear.
4. The evidence of the applicant being intoxicated dates to 2012 and earlier, and is partly hearsay. The applicant admitted taking a drink of brandy on one occasion. I do not think that this is conclusive evidence to show that the applicant is not fit and proper at the current time.
5. I am satisfied that the applicant's knowledge of her obligations as a licence holder is deficient in some aspects. She was not aware of the storage requirements for pre-1900 firearms and disputed that they were incorrectly stored. She seemed to assume that because they did not require registration the storage rules did not apply. She did not agree with the view of police on storage.
6. I am satisfied on the available evidence that the storage of pre-1900 firearms and two post-1900 firearms in the living area with blue walls to which she had access, did not comply with the legislation. In her evidence she envisaged her husband helping her store her firearms if her licence application was granted. It was evident she was dependent upon him for their storage when he possessed a licence. There is a risk in my view, based on her evidence, that the applicant would allow her husband to handle and store her firearms when he does not possess a licence.
7. Section 19(2)(b) makes it a condition of a licence that the licensee must not permit any other person to possess any firearm in the licensee's possession if that other person is not authorised to possess the firearm.
8. The applicant denied that the three firearms which she owned which were found to be missing, were in fact missing. However she was quite vague on this point and could not produce conclusive evidence to contradict this claim, despite having had notice of the firearms in question for some years. I am satisfied on the available evidence that those firearms remain unaccounted for. This is a significant risk to public safety.
9. With regard to the other four firearms, the respondent's witness conceded there were some errors in the audit at the time. The applicant did not have notice of their serial numbers at the time of internal review or for these proceedings, which occurred more than five years after the seizure. She was therefore denied the opportunity to adduce relevant evidence on this point. In my view the respondent has not satisfied the evidentiary burden on it to establish that those four firearms could not be accounted for.

Conclusion

1. Based on the above findings, I cannot be satisfied that the applicant is a fit and proper person, in terms of her knowledge and ability, and can be trusted to be in possession of firearms without danger to public safety. Consequently, for reasons of public safety and public confidence in the licensing system, I consider that issue of the licence would be contrary to the public interest.

Orders 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: 19 April 2018