McKenzie v Commissioner of Police, NSW Police [2004] NSWADT 9 (15 January 2004)

Last Updated: 16 January 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: McKenzie v Commissioner of Police, NSW Police [2004] NSWADT 9

PARTIES: APPLICANT

Bernard James McKenzie

RESPONDENT

Commissioner of Police, NSW Police

FILE NUMBERS: 033260

HEARING DATES: 15/12/2003

SUBMISSIONS CLOSED: 15/12/2003

DECISION DATE: 15/01/2004

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Firearms (General) Regulation 1997

Firearms Act 1996

CASES CITED: Hardiman v Mineham [2003] NSWCA

Mark James Ferris [unreported, NSWDC 26 June 2002]

Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226

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

Yaghi v Commissioner of Police, NSW Police Service [2001] NSWADT 91

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

T Morgan, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

D Paterson, solicitor

ORDERS: The decision of the Commissioner to revoke Mr McKenzie's category AB firearm licence is affirmed

Reasons for Decision:

BACKGROUND

1 On 18 September 2003, Bernard McKenzie, made an application to the Tribunal seeking review of the decision by a Delegate of the Commissioner of Police ("the Commissioner") to revoke his category AB firearms licence. The factual basis on which the Commissioner made his decision was a finding by the Broken Hill Local Court, on 26 September 2002, that Mr McKenzie was guilty of an offence, that occurred on 28 August 2002, of failing to take reasonable precautions to ensure the safe keeping of his firearm. The Court did not enter a conviction against Mr McKenzie pursuant to s. 10 of the Crimes (Sentencing Procedure) Act 1999.

2 Mr McKenzie has been the holder of a firearms licence since 1988. His category AB licence was issued on 9 March 1999.

3 On 7 March 2003, the Commissioner determined to revoke Mr McKenzie's firearms licence and issued a revocation notice and a statement of reasons. The notice of revocation and reasons were sent by mail to Mr McKenzie at the property where he had been working in August 2002. Mr McKenzie no longer resided at the property and the Commissioner subsequently served the revocation notice and statement of reasons on Mr McKenzie, at his new address, on 10 June 2003. The affidavit of service, in respect of the notice of revocation and reasons, expressly states that Mr McKenzie was served "at his new place of abode". Mr McKenzie's firearms and firearms licence were also seized on this day.

4 On 1 July 2003, Mr McKenzie requested an internal review of the Commissioner's decision. That review was completed on 28 July 2003 and another delegate of the Commissioner confirmed the earlier decision. Notification of the determination of the internal review, together with a statement of reasons, was again sent by mail to Mr McKenzie to the address where he had resided in August 2002. As mentioned above, this address was no longer the address of Mr McKenzie.

5 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

6 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)).

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

8 Section 7(1) of the Act prohibits a person from possessing or using a firearm unless that person is authorised to do so by the applicable licence or a permit. A contravention of this section constitutes an offence which is punishable by a fine and or a term of imprisonment.

9 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".

10 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.

11 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.

12 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 licence:

(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".

13 In respect of s.24(2)(d) of the Act, clause 17 of the Firearms(General) 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.

Evidence

14 Mr Morgan, who appeared on behalf of Mr McKenzie, called Mr McKenzie to give oral evidence and he was cross examined by Ms Patterson. In addition to this, Mr McKenzie tendered into evidence character references from the following persons: Bernard Augustine Bent (a rabbit buyer and fox skin dealer); Tim Matt (a pastoral contractor); Carolyn Egglington (JP); and Denis and Mark Liddle (director of a computer services company and a former Victorian police officer). Each of these witnesses attested to Mr McKenzie's good character.

15 Mr Morgan also relied on Mr McKenzie's written request for an internal review, dated 16 June 2003, forwarded to the Commissioner by his former solicitors.

16 Ms Paterson, on behalf of the Commissioner, tendered into evidence the police brief that had previously been filed and served. That brief of evidence contained copies of Mr McKenzie's criminal record, his firearms licence details, the Commissioner's notice of revocation and reasons for internal review and the Commissioner's internal review decision.

17 The police brief did not contain a summary of facts in relation to the incident that occurred on 28 August 2002. The only evidence that the Tribunal received in this regard was the evidence of Mr McKenzie. In summary Mr McKenzie gave evidence as follows:

(a) Mr McKenzie is 43 years of age and has been using firearms since he was 18 years of age. He lives and works in the country. He has three sons aged 22, 21 and 17. His sons have all used firearms under his supervision, however, his sons are not holders of a firearms licence.

(b) Mr McKenzie is aware that the firearms laws changed in 1996 and that this change brought into place strict licensing provisions.

(c) In August 2002, Mr McKenzie was acting as the manager of a rural property. At the time the property was under severe drought conditions, which had affected numerous sheep, cattle and horses on the property. His duties were to feed the animals and to make sure that they had water and to look after sick and distressed animals. Many of these sick and distressed animals had to be put down. This Mr McKenzie did by using his Bruno firearm. He stated that this was the most humane and quick way of killing these animals. There was no other person on the property with a firearms licence who could do this.

(d) On 28 August 2002, Mr McKenzie had taken his 21 year old son with him to assist him in putting down distressed and sick stock. His son did not live on the property with him, he was there on a holiday. Mr McKenzie took his Bruno firearm with him together with one or two boxes of ammunition. As was his usual practice when using his firearm on the property, he kept his firearm in the Landcruiser between the front two seats. During the day both Mr McKenzie and his son used the firearm and shot numerous animals. Mr McKenzie's son also shot many animals, but this was all done under McKenzie's strict supervision. At about 10.00pm that evening, Mr McKenzie and his son went back to the homestead. They parked the car about 100 metres away from the homestead and Mr McKenzie went into the house to get a bite to eat. At all times he intended to continue with looking for distressed and sick stock and shooting them where necessary. As Mr McKenzie's son was a smoker he remained outside and kept an eye on the Landcruiser.

(e) While Mr McKenzie's son was waiting outside near the car he heard the dogs bark. He thought that the dogs were barking at a wild animal so Mr McKenzie's son opened the door to the Landcruiser and reached for the firearm, which was still located, loaded with ammunition, between the front two seats. On moving the firearm it accidentally fired a bullet, which penetrated the bicep of Mr McKenzie's son. Mr McKenzie stated that he did not give his son permission to go to the vehicle and take the firearm. He also stated that his usual practice was to keep the firearm loaded while he was working and on this particular evening he had not finished his work. At the same time, it was also his usual practice to turn the safety lock on after he had finished firing his firearm. He could not recollect whether he had done this on this occasion. However, he acknowledged that the safety lock on his Bruno firearm was different to the usual form of safety lock and could easily be disengaged if the firearm was rubbed against something like a seat of a car.

(f) The incident has greatly distressed Mr McKenzie. Fortunately, Mr McKenzie's son's wound healed very quickly and he has no limited movement as a result of the injury.

(g) Mr McKenzie has always worked on rural properties that required him to use a firearm. He is not qualified to do any other type of work. However, he is currently employed with a company that does contract fencing for properties.

(h) Mr McKenzie did not seek any legal assistance at the time the charges were laid. Had he been aware that this incident would result in him losing his licence, he would have defended the charges.

Submissions

18 Ms Paterson, on behalf of the Commissioner, submitted that the offence for which Mr McKenzie was found guilty amounted to a fundamental breach of the Act, having regard to its underlying principles and objects. Mr McKenzie in allowing his son to use the firearm during the day and keeping the firearm loaded further aggravated the breach. Ms Patterson relied on the matters contained in the internal review which includes the following comment:

"...the fact remains that you were negligent and showed serious disregard for important safety provisions that had a tragic result. Further, given the circumstances in which this incident occurred and the fact that you provided no explanation for your actions it would not be unreasonable to assume that this is a common and regular practice for you when possessing and using firearms".

19 Mr Morgan, on behalf of Mr McKenzie, submitted that it is accepted that Mr McKenzie is a person of good character who has used firearms since 18 years of age and who has no previous history of unsafe use of those firearms. He submitted that there was nothing in the Act or the Crimes Act 1900 to prevent a person from having a loaded firearm in a vehicle on a public road. In support of this proposition he cited Hardiman v Mineham [2003] NSWCA. Accordingly, he contended that there was no legal prohibition on a person having a loaded firearm in a vehicle on a private property.

20 Mr Morgan also submitted that the Tribunal should adopt a practical approach in circumstances such as these. That is, safe usage of firearms must be considered differently in the country to that in the city. On the particular night in question, Mr McKenzie was working and as part of his work he was using his firearm. This required him to keep it in his vehicle ready for use. He had not authorised his son to access the firearm when he was not present but in all other respects the firearm was safely stored in his Landcruiser. In this regard he cited the decision of Acting Judge Woods in the matter of the appeal of Mark James Ferris [unreported, NSWDC 26 June 2002]. This was a case of a one off mishap and there is no evidence that this was a common or regular practice. He went on to state that there was no evidence that Mr McKenzie poses a risk to the public.

Reason and decision

21 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).

22 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 Mr McKenzie's firearms licence in accordance with 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 91 at [37]).

23 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 [2003] NSWADT 226 at [19].

24 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].

25 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".

26 The Tribunal accepts Mr Morgan's submission that a practical approach must be taken in respect of what constitutes safe keeping of a firearm while it is being used. That is, what is safe will depend on the circumstances where the firearm is being used. If it is being used in the city, then its safe keeping will differ to that which is required in the country do differ. However, in this case, such considerations are not that material. What is material is that Mr McKenzie, on his own admissions, had allowed his son to use his firearm during the day, knowing that he was not licensed to do so. Furthermore, leaving a loaded firearm unattended in his car, where it was readily accessible to his son, who had used it with permission during the day, cannot under any circumstances be regarded as safe keeping.

27 For these reasons, there can be no question that Mr McKenzie contravened s.39 of the Act. This means that 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.

28 Accordingly, I find that the Tribunal accepts Ms Paterson'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).

29 The Tribunal found Mr McKenzie to be a truthful and forthright witness. As mentioned above, he readily admitted that he had authorised his son to use the firearm during the day and that this was not an unusual practice for him. He also readily acknowledged that he kept his firearm loaded between the two front seats of the Landcruiser. Again this was his usual practice.

30 In the opinion of the Tribunal both practices are a contravention of the Act. The practice of allowing his son to use a firearm when not licensed is a contravention of s.7(1) of the Act and the latter is a contravention of s.39 of the Act. In both cases these contraventions are fundamental in nature and for these reasons, the Tribunal is of the opinion that the Commissioner's decision is the correct and preferred decision.

31 Accordingly, the Tribunal orders that the decision of the Commissioner to revoke Mr McKenzie's firearm licence is the correct and preferred decision.