Mercer v Commissioner of Police, New South Wales Police [2005] NSWADT 17 (4 February 2005)

Last Updated: 4 February 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Mercer v Commissioner of Police, New South Wales Police [2005] NSWADT 17


PARTIES: APPLICANT
Adam Michael Mercer
RESPONDENT
Commissioner of Police, New South Wales Police



FILE NUMBERS: 033337

HEARING DATES: 27/05/2004, 21/09/2004, 23/09/2004

SUBMISSIONS CLOSED: 23/09/2004



DECISION DATE: 04/02/2005

BEFORE: Montgomery S - Judicial Member





LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

CASES CITED:

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
G Sundstrom, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
P Mclaughlin, solicitor

ORDERS: The Commissioner’s decision to revoke Mr Mercer’s firearms licence is set aside.


Reasons for Decision:

REASONS FOR DECISION

1 This is an application for a review of a decision by a delegate of the Commissioner to revoke a category AB firearms licence held by Mr Adam Mercer under the Firearms Act 1996. The incident that lead to that decision occurred on 22 October 2002 after Mr Mercer informed police that he had been threatened by his ex-wife’s partner. When police attended Mr Mercer’s premises they located a loaded firearm in the lounge room of the premises. Police also located a number of firearms in a locked safe in the main bedroom of the premises. Police seized the firearms and summonses were issued to Mr Mercer for "Handle/use firearm under the influence of alcohol/drug" and "Holder of Category A or B licence not have approved storage"

2 The Commissioner also alleges that on 22 October 2002 Mr Mercer was verbally abusive during several telephone conversations with his ex-wife and her 14-year-old daughter, and that he threatened to shoot her. It is further alleged that on the same day Mr Mercer contacted St Marys Police Station by telephone, threatened police officers and informed police of his intent to shoot anyone who came to his premises.

3 Mr Mercer has a history of relatively minor breaches against the law that extend back to 1988. The Commissioner points to these breaches in support of his view that Mr Mercer is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. The Commissioner also points to an incident on 3 December 1999, when police found six unregistered firearms in Mr Mercer’s possession. At the time Mr Mercer’s firearms licence had expired and therefore he was not unauthorised to possess any firearms.

4 Mr Mercer appeared at Penrith Local in relation to the summonses on 4 August 2003 and 3 September 2003. A transcript of the proceedings on 3 September 2003 is in evidence. One of the charges was withdrawn after the prosecution case had been closed and following an invitation to do so by the presiding Magistrate. The other matter was dismissed as no prime facie case was established. It is apparent from the transcript that while one of the charges was withdrawn, it was at least in part as a result of a defect in the summons. While it is by no means clear for the transcript, it seems that Mr Mercer’s legal representative, Mr Morgan, conceded that Mr Mercer had in fact failed to comply with the legislative requirements for the security and safe storage of the firearm in question.

5 It seems that there was an agreement between the Police prosecutor, Sergeant Lind, and Mr Morgan. The exact nature of that agreement has been the subject of some debate and has taken up a considerable amount of hearing time in this matter. At the minimum it was agreed that the Police would not issue new summonses and Mr Mercer would not seek costs in the matter. Mr Mercer also asserts that Sergeant Lind gave an undertaking that no action would be taken in relation to Mr Mercer’s firearms licence. Consequently, he asserts that the Commissioner is now estopped from taking the decision to revoke his licence. Sergeant Lind did not appear to give evidence.

The Applicant’s case

6 Mr Mercer concedes the convictions asserted by the Commissioner but denies several matters that the Commissioner presents as facts in relation to the various events of 22 October 2002. He asserts that he is nevertheless a fit and proper person to hold a firearm licence.

7 Mr Morgan, who was Mr Mercer’s solicitor in the Local Court matters and has also acted for him in relation to this issue, attended the hearing and gave evidence of his discussions with Sergeant Lind on 3 September 2003 and Sergeant Lind’s undertaking that there would be no further action taken against Mr Mercer in relation to those offences. He said that Constable Martignago was a bystander in that conversation. Mr Morgan’s evidence is that the outcome of the discussions with Sergeant Lind was that there would be a complete end to anything that might arise from the allegations and that this included any action in relation to Mr Mercer’s firearms licence. Mr Morgan agreed that Constable Martignago subsequently indicated to him that he was concerned about Mr Mercer possessing a firearms licence.

8 Mr Morgan stated that he has considerable experience in dealing with firearms matters and that they occupy a large part of his practice. He also has significant experience in dealing with the Firearms Registry. He stated that in his experience the Firearms Registry had never revoked a licence after a client had been successful in defending a prosecution. His evidence is that the Firearms Registry took action in relation to Mr Mercer’s firearms licence because the Local Court had wrongly recorded that the Court had found the matters proved but no convictions were recorded, under section 10 of the Crimes (Sentencing Procedures) Act 1999. Mr Morgan stated that he had approached the Firearms Registry to have this matter corrected and his approach had been treated as an application for an internal review of the decision to revoke to Mr Mercer’s firearms licence. Mr Morgan agreed that he did not make any mention of the discussions with Sergeant Lind in that or any subsequent correspondence with the Firearms Registry.

9 Mr Mercer provided a statement in regard to this matter and also appeared and gave evidence before the Tribunal. While he concedes some previous breaches of the law and that in 1992 he was convicted of Malicious Damage and assault and placed on a 2 year good-behaviour bond, he maintains that he has learned from these brushes with the law and that he has since then striven to be and remain a responsible and trustworthy citizen.

10 He denies the Commissioner’s assertions in relation to the alleged events of 22 October 2002 and maintains that he is a fit and proper person to hold a licence. He states that the Police records have the facts loosely collated and/or exaggerated. He denied that he verbally abused or threatened anyone or that he was guilty of any conduct that would have resulted in a finding by the Court against him.

11 His evidence is that he was not privy to any conversation between Mr Morgan and Sergeant Lind about his firearms licence on 3 September 2003 however said that Mr Morgan had indicated to him that the outcome of the discussions was that if he didn’t seek costs in the Local Court proceedings no further action would be taken against him, his firearms would be returned and his licence restored. He could not remember raising that issue with Mr Morgan when the issue of his licence revocation arose or subsequently. Nor did he recall instructing Mr Morgan to get back in contact with Sergeant Lind about what had happened.

12 Mr Mercer asserts that he is a fit and proper person to hold a firearms licence and denies that it is not in the public interest for him to do so.

The Commissioner’s case

13 The Commissioner’s case is essentially that set out in the internal review statement of reasons. In essence this is that Mr Mercer is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. The Commissioner points to Mr Mercer’s previous convictions, possession of unlicensed firearms and also relies on alleged incidents said to have occurred on 22 October 2002. The Commissioner relies on a number of statements and COPS entries in relation to those alleged incidents.

14 Senior Constable Martignago provided a statement in relation to this matter and also appeared and gave evidence before the Tribunal. His evidence is that he attended the Local Court proceedings on 3 September 2003 but was not privy to all the discussions between Sergeant Lind and Mr Morgan. He said that he had made the agreement that he would not reinstate further charges against Mr Mercer if costs were not awarded but that he had made no comment in regard to any decision about Mercer's firearms licence. He also said that he had no conversations with Sergeant Lind specifically in relation to the restoration of Mr Mercer's firearms licence. He said that Sergeant Lind had told him that he had made it clear to Mr Morgan that every police officer has original authority and that despite the fact that one police officer agrees not to take certain action, it doesn't mean another police officer cannot take that action. He said that he had had a conversation with Mr Morgan in which had indicated that he was concerned about Mr Mercer having his firearms back. He could not recall any conversation with Mr Morgan regarding the restoration of Mr Mercer's firearms licence as a result of the outcome of the Local Court proceedings.

15 The Commissioner also relies on statements given by Inspector Vincent Hurley and Constable Karen Swindail in relation to a threatening telephone call purported to have been made by Mr Mercer to police officers on 22 October 2002. The Commissioner also relies on COPS entries and intelligence entries generated in regard to the alleged telephone call. Mr McLaughlin for the Commissioner contends that the matters are relevant to the issues of whether Mr Mercer is a fit and proper person to hold a firearms licence or whether it is in the public interest for him to do so. He contends that this would fall outside of the ambit and scope of any agreement that was made discussions between Sergeant Lind and Mr Morgan on 3 September 2003.

16 It appears that the Police took no action regarding those alleged threats. Constable Martignago conceded that he knew about the alleged threatening telephone call at the time of the Local Court proceedings and that he nevertheless agreed that he would not pursue the Local Court charges in some other form. He said that while he did not want to issue another summons he was still concerned about the issue of Mr Mercer holding firearms.

17 The Commissioner contends that given Mr Mercer’s previous criminal history involving violence he cannot be satisfied that there is no risk to the public if Mr Mercer holds a firearms licence. Accordingly, it is submitted, the decision to revoke his licence should be affirmed.

Decision and Reasons

18 Mr Mercer largely relies on estoppel arguments to prevent the Commissioner taking action in relation to his licence. In my view this argument is misconceived. On the evidence before me I am not satisfied that the discussions between Mr Morgan and Sergeant Lind amounted to an undertaking that no future action would be taken in relation to Mr Mercer’s firearms licence. In any event there are sound public policy reasons why such an undertaking should not be binding on the Commissioner. For reasons that will become apparent I need not consider this issue further.

19 The Commissioner relies on allegations in relation to incidents said to have taken place on 22 October 2002. Mr Mercer has denied those allegations. Charges brought against Mr Mercer were unsuccessful and new charges were not laid. While some inference can be drawn to the effect that Mr Mercer had not fully complied with the legislative requirements for the security and safe storage of his firearms, there is insufficient evidence on which I could base a finding to that effect. In this case it could not be said that Mr Mercer has acted in complete disregard of the statutory requirements to safely store his firearms. He has clearly taken steps to obtain a licence and to have his firearms registered. He has also obtained appropriate storage for those firearms. To this extent he has apparently taken his obligations seriously.

20 The allegations in relation to a threatening telephone call purported to have been made by Mr Mercer to Police officers on 22 October 2002 suffer from the problem of identification of the caller. Mr Mercer has denied the allegations. In the circumstances little weight can be given to the evidence presented in relation to that matter, as I cannot be satisfied that Mr Mercer in fact made the call.

21 The incidents to which the Commissioner has referred occurred well over two years ago. There is no suggestion that Mr Mercer has acted other than as a model citizen in that time. I have to decide what the correct and preferable decision is in the circumstances based on the evidence before me. It has been noted in numerous cases before this Tribunal that the primary issue in matters of this kind is whether or not there is a risk to the safety of the public if an applicant retains a firearms licence.

22 In the circumstances I do not share the Commissioner’s concerns that there is a risk to the public if Mr Mercer were to have his firearms licence returned. Accordingly, I am of the belief that the appropriate decision is that the Commissioner’s decision to revoke Mr Mercer’s firearms licence should be set aside.

Order

1. The Commissioner’s decision to revoke Mr Mercer’s firearms licence is set aside.