Bevan v Commissioner of Police, NSW Police Service [2004] NSWADT 1 (12 January 2004)

Last Updated: 12 January 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Bevan v Commissioner of Police, NSW Police Service [2004] NSWADT 1

PARTIES: APPLICANT

Beverley Rae Bevan

RESPONDENT

Commissioner of Police, NSW Police Service

FILE NUMBERS: 033264

HEARING DATES: 15/12/2003

SUBMISSIONS CLOSED: 15/12/2003

DECISION DATE: 12/01/2004

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes (Sentencing Procedure) Act 1999

Firearms (General) Regulation 1997

Firearms Act 1996

CASES CITED: O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210

Police v Toleafoa [1999] NSWADT AP 9

Uzelac v Commissioner of Police, Ministry of Police NSWADT 226 at [19]

Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Yaghi v Commissioner of Police, NSW Police Service [2001] NSWADT at [37]

APPLICATION: Firearms Act - firearms licence - revocation of licence or permit

Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

R Ambrose, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

D Patterson, solicitor

ORDERS: The Commissioner's decision to revoke Ms Bevan's category AB firearms licence is set aside

Reasons for Decision:

Background

1 On 24 September 2003, Ms Beverley Bevan filed an application with the Tribunal seeking review of the decision by a delegate of the Commissioner of Police ("the Commissioner") to revoke her category AB firearms licence.

2 Ms Bevan has been the holder of a category AB firearms licence since 26 October 1998. On 20 January 2003, following a domestic incident on the evening of 18/19 January 2003, her licence was suspended by the Commissioner. On 8 July 2003 the Commissioner revoked Ms Bevan's firearms licence following a finding of guilt against Ms Bevan, on 18 June 2003, by the Corowa Local Court of an offence of failing to keep firearms safely. The Court did not enter a conviction against Ms Bevan pursuant to s.10 of the Crimes (Sentencing Procedure) Act, 1999.

3 On 7 August 2003, Ms Bevan requested an internal review of the Commissioner's decision. This internal review was finalised on 3 September 2003 and the Commissioner determined to affirm the earlier decision.

4 The Tribunal has jurisdiction to hear this application by virtue of s.75(1)(c) of the Firearms Act, 1996 and s.38 of the Administrative Decisions Tribunal Act, 1997.

Relevant legislation

5 The legislation relevant to this application is contained in the Firearms Act, 1996 ("the Act"). The principles and objects of the Act are set out in s.3. The underlying principles are set out in s.3(1) and these include the principle that the possession and use of a firearm is a "privilege that is conditional on the overriding need to ensure public safety" (s.3(1)(a)) and to improve public safety which involves the promotion of safe and responsible use and storage of firearms (s.3(1)(b)(ii)).

6 The objects of the Act are contained in s.3(2) and includes the object "to ensure that firearms and stored and conveyed in a safe and secure manner" (s.3(2)(e)).

7 The safe storage requirements are contained in Part 4 of the Act. Section 39 of the Act sets out the general requirements of safe storage. These general requirements are as follows:

"s.39(1) A person who possesses a firearm must take all reasonable

precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost,

(c) that it does not come within the possession of a person who is not authorised to possess a firearm".

8 A failure to comply with s.39(1) of the Act constitutes an offence. Section 39(2) also provides that the Regulations may specify the precautions that are taken to be reasonable precautions for the purpose of this section. No regulations have been made pursuant to this particular provision.

9 Section 40 of the Act sets out the storage requirements for the holder of a category A or category B firearms licence when the firearm is not actually being used or carried. Again a failure to comply with the requirements in this section constitutes an offence.

10 Section 24(2) of the Act sets out grounds on which the Commissioner may revoke a licence, which has been issued. These grounds include the following:

"s.24(2) A licence may be revoked:

(a) for any reason which the licensee would be required to be refused a licence of the same kind,

(b) if the licensee:

(i) ..., or

(ii) contravenes any provision of this Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) for any other reason prescribed by the Regulations".

11 In respect of s.24(2)(d) of the Act, clause 17 of the Firearms Regulation, 1997 provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

Hearing

12 The hearing in this matter was conducted with Ms Patterson, who appeared on behalf of the Commissioner, being present in person before the Tribunal. Ms Bevan and her solicitor, Mr Ambrose, were not present in person before the Tribunal but appeared by means of a telephone conference.

13 At the hearing, on behalf of Ms Bevan, Mr Ambrose relied on the affidavit of Ms Bevan sworn on 8 December 2003. He also called Ms Bevan to give evidence and to make her available for cross-examination by Ms Patterson.

14 Ms Patterson, on behalf of the Commissioner, relied on the brief of evidence that had been filed and served on behalf of the Commissioner. This brief of evidence contained copies of Ms Bevan's criminal record, her firearms licence details, the Commissioner's notice of revocation and reasons for revocation, Ms Bevan's application for internal review and the Commissioner's internal review decision.

Evidence

15 As mentioned above, the Commissioner relied on an incident that occurred on the evening of 18/19 January 2003, involving Ms Bevan, as the basis on which he revoked her firearms licence. According to the records kept by the Commissioner in respect of the incident, the police received a telephone call at about 11.45pm on 18 January 2003. That record goes on to state the following:

"About 12.05am Sunday 19th January 2003 police attended [the property], in relation to a domestic dispute.

On arrival police spoke with the Defendant's husband, Mr Frederick BEVAN, and he informed police that everything was OK. Police then asked to see the Defendant, Beverley BEVAN, and was allowed entry into the house.

The Defendant came from out of a bedroom and it was noticed that the Defendant was well affected by alcohol. Police ascertained that the incident was a verbal argument only.

The Defendant was asked if there were any firearms in the house, the Defendant informing police that she was the holder of a firearms licence and that she had two firearms.

Police asked to inspect the firearms with the Defendant walking into a rear room, showing police a wooden box on the floor. The Defendant said, "I knew you were coming so I put them in the case".

Senior Constable Thomas said, "I would like to see the steel lockable cabinet that they should be kept in".

The Defendant said, "It's out in the garage". Senior Constable Thomas said, "I would like to inspect it".

The Defendant hesitated.

Senior Constable Thomas said, "Have you got a steel lockable cabinet to store them in?" The Defendant said, "No".

...

While Senior Constable Thomas was recording the firearms details into his notebook the Defendant was uncooperative and abusive towards police.

...."

16 In her affidavit and oral evidence, Ms Bevan stated the following:

a) She has been the holder of a firearms licence since the age of 18. Initially she was the holder of a licence under Victorian law. She had also been the holder of a licence under the previous New South Wales law.

b) She married Mr Bevan in April 1988 and they lived together for about 10 years. Approximately 18 months ago, they separated and Mr Bevan moved to another residence in the town where they live. They have a 15 year old son and Mr Bevan returns to the matrimonial home to see their son. He also stays at their matrimonial home when Ms Bevan is working a night shift or is otherwise not at home. To facilitate him staying at the matrimonial home, Mr Bevan maintains his own bedroom, which is at the back of the house. It is in this room, that Ms Bevan has the requisite steel storage cabinet in which she stored her firearms when they were not being used.

c) Ms Bevan had possession of two firearms, which had been handed down to her by her father. She was familiar with the requirements of safe storage under the Firearms Act and always kept the weapons locked away in the steel cabinet when they were not being used. At no time has she kept ammunition on the premises for use with a firearm. She only removes the shotgun from the safe when she takes her 15 year old son, who has a shooter's permit, to supervised clay shooting. She is an accomplished clay shooter and without the use of her firearm, her son would not be able to participate in this sport.

d) On the evening of 18 January 2003, Ms Bevan and her husband argued. She had had "far too much" to drink and as a result of the verbal argument Ms Bevan called the local police. On calling the local police she was asked whether there were any firearms on the premises. She responded by saying "Yes". After she had made this telephone call Mr Bevan said to Ms Bevan "That was stupid, they will come and take your guns away like they did last time" and he suggested that Ms Bevan get them out of the steele storage cabinet as he did not want the police "traipsing" through his bedroom. As matters had settled down, Ms Bevan again called the police and told them not to bother coming as everything had been resolved. However, the police informed her that as she had said there were firearms present on the premises they were coming anyway. In light of what her husband had told her, Ms Bevan went to the steel storage cabinet and removed the firearms from that cabinet and placed them into a lockup carry box case. This case she placed in the sun room.

e) Ms Bevan placed the firearms in the carry box case in order for the police to be able to take her weapons. In the mid 1990's the police had confiscated Ms Bevan's firearms following an earlier domestic dispute. The firearms were subsequently returned to her. It was this experience, together with her husband's comments about the previous incident, which motivated Ms Bevan to remove her firearms from the steel storage cabinet to the carry box case.

f) When the police arrived, they expressed no interest or concern about the reasons why Ms Bevan had called them in the first place. They were only concerned about the firearms. Ms Bevan was very angry about the attitude of the police and it was for this reason that she was uncooperative. She stated that she now recognizes that she behaved inappropriately and stated she would not do it again.

g) On the following day, Ms Bevan gave the police access to her husband's bedroom and the steel storage cabinet in which she always stored the firearms.

17 There was no dispute that the police initially charged Ms Bevan with two offences. One offence under s.39 of the Act in that she failed to keep her firearm safely and another offence under s.40 of the Act in that she had failed to store her firearms in an approved storage cabinet. The latter charge was withdrawn and dismissed, as she clearly has the requisite "storage cabinet" that complies with s. 40 of the Act.

Submissions

18 Ms Patterson, on behalf of the Commissioner, submitted that the offence for which Ms Bevan was found guilty amounted to a fundamental breach of the Act, having regard to its underlying principles and objects. Furthermore, she submitted that the circumstances of this offence were aggravated in that Ms Bevan was under the influence of alcohol and the breach had occurred following a domestic dispute. She went on to argue that a breach of this nature required the Commissioner to revoke her licence. She also submitted that the reason given by Ms Bevan as to why she wanted her licence returned to her, were not sufficient for the Commissioner to exercise his discretion in her favour. Finally, she submitted that having regard to all the circumstances the public could not be convinced that a contravention of this nature would not happen again in the future.

19 Mr Ambrose, on behalf of Ms Bevan, submitted that the circumstances of this application is distinguishable from most of the reported decisions concerning the safe storage of firearms. In particular, he drew the Tribunal's attention to the fact that Ms Bevan took the firearms from the steel storage cabinet so that they were ready for the police to take away. That is, Ms Bevan had not placed the firearms in the carry box case for the purpose of storing them when they were not being used. She had merely placed them in the case so that the police could take them away. He also submitted that there was no evidence of the public being placed at risk by reason of her conduct. He pointed to the fact that the argument was not a violent argument, it was merely a verbal argument and at no time was there any ammunition in the house.

Reasons and Decision

20 The Tribunal's task is to determine whether the Commissioner's decision is the correct and preferred decision having regard to the relevant facts and the applicable law (see s.63, Administrative Decisions Tribunal Act, 1997).

21 The Tribunal has carefully considered all the material that has been provided by the respective parties. The issue in this case is whether, having regard to all the relevant circumstances in this application, whether the Commissioner was correct in exercising his discretion to revoke Ms Bevan's firearms licence in accordance with s.24(2)(b)(i) or s.24(2)(b)(ii) or s.24(2)(d) of the Act and clause 17 of the Firearms (General) Regulation, 1997. It is well established that in exercising the discretion to revoke a licence under s.24 of the Act, the Commissioner, and hence the Tribunal, must exercise this discretion keeping in mind the nature of the conduct and the principles and objectives of the Act (Yaghi v Commissioner of Police, NSW Police Service [2001] NSWADT at [37]).

22 The Tribunal has considered numerous applications relating to the revocation of a firearms licence where the licence holder has failed to meet the requisite storage requirements contained in Part 4 of the Act. The principles, which emerge from these decisions were recently summarised by the Acting President in Uzelac v Commissioner of Police, Ministry of Police NSWADT 226 at [19].

23 In that application, the Acting President stated that the principle issue is whether there is a risk to the safety of the public if the applicant retains the licence and she quoted Vella v Commissioner of Police, NSW Police Service [2003] NSW ADT 91 at [35] as authority for this proposition. She went on to state that for the purpose of determining this principle issue the relevant considerations included the following:

· the reason for failing to store the firearm safely;

· the length of time the firearm was not stored safely;

· the potential real danger posed by failure to store the firearm safely;

· the person's previous conduct in relation to storage of firearms and any related matter;

· the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

· the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety (Moody v Commissioner of Police, NSW Police [2002] NSW ADT 146 at [25].

24 She then stated:

"In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cuzumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50".

25 It is not disputed that Ms Bevan contravened s.39 of the Firearms Act. Nor is it disputed that Ms Bevan contravened a condition of her licence (see s.19(2) and (a) of the Act). Accordingly, the threshold factual matters in order for the Commissioner to exercise his discretion under s.24(2)(b)(ii) and (iii) of the Act have been established. The question is whether, having regard to the nature of the contraventions, they warranted the revocation of Ms Bevan's licence.

26 The Tribunal accepts Ms Patterson's submissions that contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions, which go to the crux of the principles and objectives of the Act. Parliament has emphasised the fundamental nature of such contraventions, if proven and a conviction is recorded, by prohibiting the Commissioner from issuing a firearms licence to the convicted person for 10 years after the conviction was entered into (see s. 11(5)(a) of the Act and cl 5(a) of the Firearms (General) Regulation 1997). Similarly, where a licence holder is convicted of such a contravention the Commissioner is required to revoke the licence of that licence holder (s. 24(1A) of the Act). However, where a contravention has been proven without a conviction having been recorded, Parliament has given the Commissioner a discretion as to whether to revoke a licence. In the opinion of the Tribunal, this discretion does not alter the fundamental nature of a contravention, particularly where a court has made a finding of guilt. In the opinion of the Tribunal, in those circumstances, on a proper construction of the Act, Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(1)(a) of the Act).

Contraventions of the Act/ Conditions of the licence

27 Having regard to the facts in this case, the Tribunal agrees with Mr Ambrose, that this is an exceptional case and that the circumstances of this application are distinguishable from the ordinary case, which has come before the Tribunal in regard to a decision to revoke a licence. The distinguishing features are as follows:

a) At all times Ms Bevan had the requisite steel storage container for her firearms. Furthermore, with the exception of the day in question, Ms Bevan always kept the firearms in this steel storage container and she was the sole custodian of the keys for this container.

b) The reasons why Ms Bevan removed the firearms from the steel storage container have been explained and the Tribunal accepts that explanation. It is noted that her explanation has been consistent from the time the police arrived at her home.

c) The firearms were in the carry box case for a relatively short period of time (note the COPS report states that the police received the telephone call at 11.45pm and that they arrived at Ms Bevan's home at about 12.05am). Accordingly, the firearms were in the carry box case for no more than 25 minutes and they were not left alone so that someone else could take them.

d) The firearms during the period they were in the carry box case posed no real danger to the public not only because of the relatively short period of time they were in the box but also because Ms Bevan did not store any ammunition on the premises.

e) There are no other adverse findings against Ms Bevan in respect of her conduct relating to her possession and use of firearms, including the storage of those firearms. Indeed the evidence is that the firearms were at all times stored in accordance with the Act.

f) Ms Bevan understands the importance of safe storage and the Tribunal accepts that she would not behave in the same way in future.

g) There is no evidence of any violent behaviour by Ms Bevan or Mr Bevan on the night of 19 January 2003. Nor is there any evidence of such violent behaviour before or after this incident.

h) Ms Bevan only uses one of her firearms. This firearm she uses to accompany and supervise her son to do clay shooting at the local club. Her son has a minors shooters licence and she wishes to pass the firearms down to her son.

28 Having regard to all of the abovementioned matters the Tribunal is satisfied that Ms Bevan, through her actions, posed almost no risk to the public at the time the offence occurred and there is no evidence that she is likely to pose such a risk in future. Accordingly, the Tribunal is of the opinion that the Commissioner's decision to revoke Ms Bevan's firearms licence pursuant to s.24(2)(b)(ii) and s.24(2)(b)(iii) of the Act is not the correct and preferred decision.

Public Interest

29 This leaves the question of whether it is in the public interest to revoke Ms Bevan's firearms licence.

30 The concept of "public interest" has been considered by this Tribunal in several decisions (e.g. Whiteman v Commissioner, New South Wales Police Service [2002] NSW ADT 179: Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 and Police v Toleafoa [1999] NSW ADT AP 9). In Toleafoa the Appeal Panel stated at [25] that 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."

31 The phrase `in the public interest' was considered by the High Court in O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210. In a joint judgment Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216:

"...the expression `in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only `in so far as the subject matter and scope and purpose of the statutory enactments may enable..."

32 In Ward, the Deputy President held that the `public interest' in relation to the holding of a firearms licence related to the objects and principles set out in s.3 of the Act. Consequently, a decision to revoke a licence under s. 24(2)(d) of the Act and cl. 17 of the Firearms (General) Regulation 1997 requires the Commissioner, and the Tribunal, to have regard to matters similar to those discussed above. In this case, there are no matters in addition to those that occurred on the evening of 18/19 January 2003 and for the reasons already stated, the Tribunal is of the opinion that the Commissioner's decision pursuant ss. 24(2)(d) of the Act and clause 17 of the Firearms General Regulation 1997 to revoke Ms Bevan's firearms licence is not the correct and preferred decision.

33 The Tribunal orders that the Commissioner's decision to revoke Ms Bevan's category AB firearms licence is set aside.