Bichler v Commissioner of Police [2009] NSWADT 27 (6 February 2009)

Last Updated: 6 February 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Bichler v Commissioner of Police [2009] NSWADT 27


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Steven Bichler

RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS:
083266

HEARING DATES:
22 January 2009

SUBMISSIONS CLOSED:
22 January 2009



DATE OF DECISION:
6 February 2009

BEFORE:
Handley R - Deputy President





LEGISLATION CITED:
Firearms Act 1996
Firearms (General) Regulation 2006
Crimes (Sentencing Procedure) Act 1999
Administrative Decisions Tribunal Act 1997

CASES CITED:
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Cusumano v Commissioner of Police, NSW Police [2001] NSWADT 50
Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149

TEXTS CITED:


APPLICATION:
Firearms licence - revocation of licence or permit

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
P Kenny, solicitor
RESPONDENT
S Sheather, solicitor


ORDERS:
The decision under review is set aside and a decision substituted that a category AB firearms licence is to be reissued to Mr Bichler subject to a condition that his firearms should be kept and secured in the approved safe storage of an approved shooting club, firearms range or Australian Army or Army Reserve armoury and not at his residential address.


Reasons for Decision:

REASONS FOR DECISION

1 On 3 September 2008, Steven Bichler applied to the Tribunal for the review of a decision of the Commissioner of Police (‘the Commissioner’) made under the Firearms Act 1996 (‘the Act’) to revoke his category AB firearms licence on the grounds of public safety and the public interest.

Background

2 Mr Bichler is aged 40. He served in the Army Reserve from 1987, and in the Australian Army from 1990 to 1994, attaining the rank of Lance Corporal. On discharge from the Army, he rejoined the Army Reserve in which he continues to serve, now holding the rank of Sergeant. Mr Bichler was granted a category AB firearms licence on 21 October 2004. He states that he previously held a firearms licence while living in Victoria, and that he has been involved in shooting competitions for about 22 years.

3 Mr Bichler is self-employed as a building maintenance service tradesman. He lives in a de facto relationship with Hellen Konstantinides. In 1998, they purchased a house together at 23 Narooma Place, Gymea Bay where they reside.

4 On 28 October 2006, Mr Bichler was involved in a dispute with his neighbour, Desmond Caruana, who lived at 19 Narooma Place, Gymea Bay. Following this incident, Mr Caruana lodged a complaint with Sutherland Police. On 14 November 2006, the Police arrested Mr Bichler and he was charged with assault and malicious damage, the latter charge being in respect of Mr Bichler’s throwing an egg at Mr Caruna’s property. His firearms licence was also suspended and his firearms taken to Sutherland Police Station.

5 On 13 April 2007, Mr Bichler, who has no criminal record, appeared at Sutherland Local Court. The charge of common assault was withdrawn at the request of Mr Caruana, and Mr Bichler pleaded guilty to the charge of malicious damage. While Mr Bichler was found guilty of the latter charge, the Court ordered that the charge be dismissed without proceeding to conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

6 On 2 November 2007, following a revocation notice dated 29 October 2007, the Commissioner revoked Mr Bichler’s firearms licence. On 28 November 2007, Mr Bichler lodged an application for an internal review of this decision. On 18 December 2007, a delegate of the Commissioner affirmed the original decision. A Statement of Reasons for this decision was delivered to Mr Bichler’s address by registered post on 29 January 2008.

7 Mr Bichler states that he was deployed with the Army Reserve in East Timor from 20 December 2007 until early March 2008, and Ms Konstantinides was away in London from early December 2007 until 2 February 2008. During the time that they were both away overseas, neighbours looked after their house and collected their mail, and it appears that some of their mail, including notification of the internal review decision, fell behind furniture and was temporarily lost. Mr Bichler discovered the lost mail in mid July 2008. On trying to contact his solicitor, Mr Kenny, Mr Bichler found that Mr Kenny had moved offices, and it was not until early August 2008, that Mr Bichler was able to contact him. On 13 August 2008, Mr Kenny, acting on behalf of Mr Bichler, filed an application for review of the Commissioner’s decision with the Tribunal, and sought leave to extend the time for the making of the application.

Application for leave to make a late application

8 Pursuant to s 55(1)(d) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) and rule 15(3) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998, in effect at the time the application for review was lodged (see now s 55(1) and (2) of the ADT Act, as amended from 1 January 2009), a person was required to apply to the Tribunal for the review of a decision within 28 days. However, s 57(1) permits the Tribunal to extend the time for the making of the application "if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application".

9 In written submissions dated 2 December 2008, the Commissioner opposed the granting of leave for the making of a late application. The Commissioner referred to the public interest in having the Tribunal stick to procedural requirements and for Respondents to be able to assume that no further challenge will be made after the 28 day appeal period has elapsed. The Commissioner also questioned the merits of the case and submitted that the applicant had not provided a reasonable explanation for the delay in making the application for review.

10 Mr Bichler’s explanation for the delay in making his application is summarised in paragraph 7, above. In his written submissions, Mr Kenny submitted that his client had provided a reasonable explanation for the delay. Mr Kenny contended that the Commissioner "will not be greatly prejudiced or inconvenienced" by the application having been filed out of time, and the case has merit. Mr Bichler has at all times been cooperative with the Police and judicial process. While Mr Bichler does not need a firearms licence for service in the Army Reserve, he does need it in order to participate in competitive shooting, and grant of the licence would not be against the public interest.

11 Having considered the parties’ submissions, I am satisfied that Mr Bichler’s explanation is a reasonable one. The Commissioner does not appear to have been prejudiced by the delay; as will appear below, in my view, Mr Bichler’s case does have merit; and while timeliness is an important consideration, the connection between the purpose for which Mr Bichler claims to need the licence and his Army Reserve service indicates that there are public interest considerations which favour restoration of his licence, albeit, as stated below, subject to conditions. Pursuant to s 57 of the ADT Act, I therefore extend the time for the making of Mr Bichler’s application for review until 3 September 2008.

Evidence

Steven Bichler

12 Mr Bichler gave evidence about the incident on 28 October 2006. He explained that since he and Ms Konstantinides moved into their house at 23 Narooma Place, Gymea Bay in April 1998, there had been many occasions on which Mr Caruana verbally abused them, making accusations against them and threatening violence. Their other neighbours in the street told them of similar problems with Mr Caruana. Mr Bichler produced a letter dated 19 January 2009 from Norma Ikin, an elderly lady who lives at 27 Narooma Place, in which she says Mr Caruana "was not friendly and has caused constant problems over recent years". She refers to Mr Bichler as "a wonderful neighbour always ready to help me in any way he can".

13 Mr Bichler said that shortly after 5.00 pm on Saturday 28 October 2006, he exited the back of his property into Tathra Place and walked to the local garage and general store to buy bread, milk, eggs and a few other provisions. As Mr Bichler walked up the steps from Tathra Place back into his property with provisions from the shop, Mr Caruana, who occupied a house facing Tathra Place, shouted out abuse in an aggressive manner. In a letter to the Internal Review Officer dated 20 November 2007, Mr Bichler said he was fed up with such abuse and "out of frustration, I removed an egg from the carton I had just bought and threw it in the general direction of his house. I kept walking and did not actually see if the egg had struck his house." Mr Caruana reacted by screaming further abuse as Mr Bichler walked up the stairs onto the deck at the back of his house and into the kitchen to put away the shopping. Mr Bichler then became aware that Mr Caruana had entered the back of Mr Bichler’s property, and had crossed the several levels of the rising block, pushing rocks from a rock wall with his feet, pulling up plants and damaging a wooden balustrade. (Mr Bichler produced a set of photographs showing the layout of the rear of the property and the deck, and also of the damage caused by Mr Caruana.)

14 Mr Bichler said he went out onto his deck and yelled at Mr Caruana to get off his property, but Mr Caruana kept coming and started to climb the steps to the rear of the deck, shouting that he was going to kill Mr Bichler. Mr Bichler is about 5 ft 7 ins tall and weighs about 75 kgs. He described Mr Caruana as being big and very strong - over 6 ft tall and probably weighing about 120 to 130 kgs. Mr Caruana was very aggressive and Mr Bichler, who feared for his and Ms Konstantinides’ lives, picked up a tomahawk beside a woodpile at the rear of the deck which he uses for chopping kindling wood for their wood fire. He held the tomahawk in his right hand at shoulder height so that the top was just above his head, waving it slightly – about 5 cms from side to side. He denied swinging the tomahawk. Mr Bichler said he was "shaking like a leaf" at the time, and believes there was nothing else he could have done in the circumstances. He adopted a defensive position, moving forward to the stairs at the edge of the deck and starting to descend. When he was several steps and about half a metre above Mr Caruana, with them both shouting at each other, Mr Caruana finally turned and went back down the steps to leave the property, continuing to shout obscenities.

15 Mr Bichler said he has been instructed in self-defence for service with the Army Reserve Response Group, which may be called upon to serve with the State and Federal Police. He considers himself very competent in self-defence tactics. In the confrontation with Mr Caruana, he did not intend to use the tomahawk - merely to use it for defensive purposes. After the incident, he did not want to phone the Police, as suggested by Ms Konstantinides, but preferred not to do so in order to try and defuse the situation. Mr Bichler was surprised when the Police came to his house about 17 days later and arrested him for assault. They had phoned and made an appointment to inspect the storage of his firearms. On arrival, Mr Bichler having opened his safe, they confiscated his weapons and arrested him. They were not interested in the tomahawk, which remains in the same position in a chopping block on his deck for use in chopping wood for kindling. Mr Bichler went with the Police to the Police Station and co-operated in answering their questions in an interview. He was given the opportunity to speak to a lawyer but declined to do so.

16 Mr Bichler said he was extremely stressed during the interview. In relation to a question about previous incidents in which Mr Caruana had threatened to injure or kill him, Mr Bichler said there was only one other occasion when he had needed an instrument to protect himself. This occurred was when Mr Bichler was unloading tools from his truck in the carport towards the front of his property when Mr Caruana approached him and started screaming and yelling abuse. When Mr Caruana lunged at him, Mr Bichler used the ladder he was already holding to protect himself. He has never actually used a lump of wood to defend himself.

17 Mr Bichler recalled another incident when Mr Caruana accused Mr Bichler of allowing his and Ms Konstantinides’ children to throw rocks at him. Mr Bichler said they do not have any children. Mr Bichler believes this may be the incident recorded in the COPS (Computerised Operational Policing System) entry on 25 February 2000, when Mr Caruana complained to Police that about an alleged incident involving a small piece of concrete landing next to his car. Mr Bichler said he was never involved in doing anything like this.

18 Mr Bichler said he was not aware of the assault charge being withdrawn at Mr Caruana’s request until Mr Kenny informed him of this on the day of the hearing at Sutherland Local Court. Mr Bichler said he has not spoken to Mr Caruana since the incident on 28 October 2006 and has not seen him since the hearing at the Local Court. He does not think Mr Caruana lives in Narooma Place anymore as the house has tenants in it.

19 Mr Bichler was asked about the purpose for which he needs the firearms licence. He said that when he was initially granted a licence, he did use his firearms for hunting and vermin control. It is now about three or four years since he went hunting with a firearm. He has instead taken up hunting with a bow – using a compound bow and arrows, something he has used for about 20 years.

20 Mr Bichler said he wants a firearms licence so that he can train for and participate in shooting competitions. He was in the Regimental Shooting team for 10 years and has been involved in shooting competitions for about 22 years. Due to financial restrictions, the Army Reserve only allows its members 23 rounds of ammunition per year for training. He therefore has to provide his own ammunition for training and competitive shooting. He would use about 3,000 to 4,000 rounds of ammunition per year for this and for the last 15 years has re-loaded his own ammunition.

21 Mr Bichler said his firearms are currently stored at the Condell Park Indoor Firearms Range but, without his being able to produce a licence, he is unable to access or use them. If his licence is restored, he intends to continue storing them there. There is strict security at the Range, including two sets of security doors and a desk where a person must sign to remove their firearms from the armoury, with the firearms to be signed in again on their return. Use of firearms on the range is filmed on security cameras and monitored from the desk, where staff can watch those on the range through a large security window. Mr Bichler agreed that to take part in shooting competitions, he would need to take his firearms with him to other competition venues. He said some team members store their firearms at home, some in the military armoury if there is room, and some use club facilities.

22 Mr Bichler was asked about a COPS report dated 7 June 2002 concerning information provided by a member of the public about a man seen leaving Mr Bichler’s house wearing army fatigues and carrying a compound bow. Mr Bichler said he remembered Police speaking to him about this. Mr Bichler said he had heard a rumour of someone going into the bush with a gun, and a Sutherland Council pest control officer had told him of people hunting deer in the Royal National Park to the south.

23 Mr Bichler said he has never taken a bow or gun into the bush to the rear of Narooma Place: "The bush is full of kids." While he does have Army Reserve issue camouflage gear, he has never worn this in local bushland. The person described in the COPS report is not him. Mr Bichler said he had previously owned firearms and had been licensed when he lived in Victoria. After he moved to NSW, he surrendered his firearms to Cronulla Police during the firearms amnesty (in about 1997). He has never taken his Army Reserve weapons home.

Phillip Pollard

24 Mr Pollard is a Warrant Officer Second Class, Battery Sergeant Major, 11 Field Battery, 23 Field Regiment, Royal Australian Artillery. He is the captain and coach of his unit’s rifle club. Mr Pollard said he has known Mr Bichler for at least 10 years and is aware of the charges brought against him. Mr Bichler’s weapons handling is extremely good and he is one of the better instructors who assists in training army cadets. Mr Pollard has watched Mr Bichler regularly and considers his weapons handling safety to be beyond reproach.

25 Mr Pollard said that to maintain a position in the Army Reserve, a person must fire 23 rounds a year for the purpose of training. However, active members of the rifle club also do a lot of practice in their own time with their own weapons and ammunition. Mr Bichler reloads his own ammunition and needs a firearms licence to do this. Most members of the rifle club would be likely to fire 2,000 to 3,000 rounds a year. A person could not compete with only 23 rounds.

26 Mr Pollard said practice with the rifle club is a by-product of the Army Reserve unit. However, progress in the Reserve is not affected by membership of the rifle club.

Submissions

The Applicant

27 Mr Kenny noted that Mr Bichler does not have a criminal record and that the assault charge was withdrawn at Mr Caruana’s request. He submitted that Mr Bichler is a respected, honourable person. Mr Bichler cooperated with the Police throughout and was frank in giving evidence before the Tribunal.

28 Mr Bichler needs a firearms licence to enable him to train for and compete in shooting competitions such as those in which he has been involved for about 20 years. He also needs a licence to enable him to reload ammunition to specific tolerances and to store this.

29 Mr Kenny submitted that Mr Bichler’s actions on 28 October 2006 were a reasonable response to the threat posed by Mr Caruana as Mr Bichler perceived it. His response had the desired effect in that Mr Caruana desisted and left Mr Bichler’s property. Mr Kenny pointed to various errors in the statement prepared for the Local Court proceedings by Senior Constable Gretchen Grove-Jones.

30 Mr Kenny submitted that Mr Bichler poses ‘virtually no risk’ to public safety. He has had no contact with Mr Caruana for two years and three months and has not seen him since April 2007. There is no evidence to suggest there will be any further incidents between them. Moreover, Mr Bichler has advised that his firearms will be stored at the Indoor Firearms Range at Condell Park.

The Respondent

31 Mr Sheather, for the Commissioner, acknowledged that there had been no conflict between Mr Bichler and Mr Caruana for more than 12 months. He submitted that the COPS event dated 7 June 2002 speaks for itself. The report was of a person leaving 23 Narooma Place, Mr Bichler’s property "dressed in army fatigues and carrying a compound bow". The Tribunal should infer that on the balance of probabilities this was Mr Bichler since he has such gear. If it was Mr Bichler, then there could be a risk to the community.

32 Mr Sheather referred to the decision in Stranges v Commissioner of Police, NSW Police [2004] NSWADT 221, where the applicant sought to rely on self-defence as justification for his conduct in punching a person in the face with a broken bottle. However, the Tribunal noted that in convicting Mr Stranges of malicious wounding, the Court did not accept his explanation that it was done in self-defence. [In my view, this case, which involved the issue of whether the applicant was a fit and proper person to hold a security licence, is materially different to that under consideration in the present matter.]

33 Mr Sheather submitted that if the Tribunal is considering restoring Mr Bichler’s firearms licence subject to a condition, then its recognition of the need to impose a condition indicates it is not in the public interest that the licence be restored.

Discussion

34 The underlying principles of the Firearms Act 1996 stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, Òthe Tribunal must be satisfied that there is virtually no riskÓ.

35 Section 24(2)(d) of the Act provides that the Commissioner may revoke a firearms licence for any reason prescribed by the regulations. Clause 19 of the Firearms Regulation 2006 states:

ÒThe Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.Ó

36 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph 25, the Appeal Panel said that the ‘public interest’ Òis an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individualÓ.

37 In the decision under review, dated 18 December 2007, a delegate of the Commissioner decided it would not be in the public interest for Mr Bichler to continue to hold a licence. The delegate stated that he was satisfied that Mr Bichler’s conduct Òdemonstrates a risk to public safety should you be in possession of firearmsÓ.

38 The conduct in question was that involved in the incident on 28 October 2006. I have reviewed the evidence relating to that incident and its antecedents, and more generally in relation to Mr Bichler’s background, training, experience and character. The incident on 28 October 2006 was the last of a series of incidents involving the exchange of abuse between Mr Bichler and his neighbour, Mr Caruana. Mr Bichler’s account of the incident on 28 October 2006 differs in material respects from that given by Mr Caruana to the Police in statements dated 28 and 30 October 2006. I note that it was apparently on the basis of these statements that Mr Bichler was charged with common assault, but that this charge was withdrawn on the morning of the hearing at the request of Mr Caruana. Mr Caruana’s account has never, therefore, been tested in legal proceedings.

39 I found Mr Bichler to be a credible witness. He appeared frank in giving evidence and I note that his evidence is essentially the same as that revealed in the transcript of his interview with Police on 14 November 2006. I also note the additional evidence concerning Mr Bichler’s background, training and experience in the Australian Army and Army Reserve, and his involvement in competitive shooting in what appears to an adjunct to his service in the Army Reserve. I accept that he is experienced in self-defence and in the use of ‘minimum force’ in dealing with difficult situations. I also note Mr Pollard’s evidence that Mr Bichler’s weapons handling and safety in such handling is beyond approach.

40 I am not satisfied that Mr Bichler acted unreasonably in reacting to what he perceived to be a serious threat from Mr Caruana. I note that there has been no further contact between Mr Bichler and Mr Caruana since the date of the incident except in so far as Mr Bichler saw Mr Caruana at Sutherland Local Court at the time of the hearing on 13 April 2007. Two other allegations have been made to the Police concerning Mr Bichler – by Mr Caruana on 25 February 2000 and by an unidentified person on 7 June 2002. Mr Bichler has provided a plausible explanation in respect of the first allegation and strongly denies the other, upon which, in my view, in the absence of any corroborative evidence, no weight should be placed.

41 In conclusion, I am satisfied that Mr Bichler poses virtually no risk to public safety. However, I note that Mr Caruana apparently still owns the property adjacent to Mr Bichler’s property, although Mr Bichler has had no contact with him there since the incident in October 2006 and believes the property is currently tenanted. Mr Bichler has volunteered that if his licence is restored, he intends to store his firearms where they are currently held at the Condell Park Indoor Firing Range.

42 In my view, given the evidence before the Tribunal, the correct and preferable decision is to revoke the Commissioner’s decision and substitute a new decision that Mr Bichler’s category AB firearms licence should be reinstated subject to a condition in relation to the storage of his firearms. Section 19(1) of the Firearms Act 1996 provides that the Commissioner may issue a licence Òsubject to such conditions as the Commissioner thinks fit to imposeÓ. The discretion to impose conditions is a broad one and there is no guidance in the Act as to how it is to be exercised: Cusumano v Commissioner of Police, NSW Police [2001] NSWADT 50, at paragraph 23. However, it is clear that the discretion must be exercised in accordance with the principles and objects of the Act set out in s 3, which, as I have stated above, emphasise the overriding need to ensure public safety. (See also Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149.)

43 In circumstances where there is always the possibility of a future dispute/confrontation between Mr Bichler and his neighbour, Mr Caruana, it is in my view prudent that Mr Bichler's reinstated licence be subject to a condition for the immediate future that his firearms should be kept and secured in the approved safe storage of an approved shooting club, firearms range or Australian Army or Army Reserve armoury and not at his residential address.

Decision

44 The decision under review is set aside and a decision substituted that a category AB firearms licence is to be reissued to Mr Bichler subject to a condition that his firearms should be kept and secured in the approved safe storage of an approved shooting club, firearms range or Australian Army or Army Reserve armoury and not at his residential address.