Skeen v Commissioner of Police, New South Wales Police Force [2009] NSWADT 329 (7 October 2009)

Last Updated: 31 October 2011

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Skeen v Commissioner of Police, New South Wales Police Force [2009] NSWADT 329


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Andrew James Skeen

RESPONDENT
Commissioner of Police, New South Wales Police Force



FILE NUMBERS:
093153

HEARING DATES:
28 September 2009

SUBMISSIONS CLOSED:
28 September 2009




EX TEMPORE DATE:
7 October 2009

BEFORE:
Grant Y - Judicial Member





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

CASES CITED:
Lynch v Commissioner of Police, NSW Police [2007] NSWADT 80
Yaghi v Commissioner of Police, NSW Police Service [2001] NSWADT 91
Bevan v Commissioner of Police, NSW Police Service [2004] NSWADT 1
Police v Toleafoa [1999] NSWADT AP 9
Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91
Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28
Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127
Cusumano v Commissioner of Police [2001] NSWADT AP 28
Uzelac v Commissioner of Police, Ministry of Police NSWADT 226
Osborne v Commissioner of Police (GD) [2000] NSWADTAP 10

TEXTS CITED:


APPLICATION:
Firearms Act – Firearms Licence – Refusal of Licence

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
S Sheather, solicitor by telephone


ORDERS:
The decision of the Commissioner of Police, New South Wales Police Service, to refuse the application of Mr Skeen for a Firearms Licence is affirmed.


Reasons for Decision:

REASONS FOR DECISION

Background

1 The matter came before the Tribunal by way of an appeal against a refusal for an application for the issue of a Category AB Firearms Licence, which was first issued on 30 July 1998, expired on 27 August 2003 and was then the subject of further application in 2003, which was granted on 27 August 2003, expressed to expire on 27 August 2008.

2 On 13 March 2008, the Applicant lodged a summary reapplication for that licence. That application was approved and the photographic advice was sent to the Applicant on 14 April 2008.

3 However, that Advice expired on 14 June 2008, without being used. A further photographic Advice was sent on 23 June 2008. However, on 26 June 2008, the advice was cancelled and the Application was refused on 5 March 2009.

4 On 14 April 2009 that refusal was the subject of an internal review, which affirmed the refusal of the Applicant’s Category AB Firearms Licence.

5 On 28 September 2009 the matter came before this Tribunal seeking a review of the refusal to grant the applicant a firearms licence.

6 The Applicant has prior convictions, on 25 June 1982, for false pretences (6 counts) sentenced to the rising of the Court) and ‘Possess property stolen outside the State of New South Wales’ ($400 fine and 2 year supervision probation and parole service). On 16 January 1984 ‘PCA’ (Fine $350, disqualification 6 months), and on 28 July 2003 for ‘shop-lifting, value less than = $2,000 – T2’( fined $150).

7 The Applicant has been authorised for firearms in New South Wales since at least 12 May 1993.

8 On 25 October 2001 it was alleged that the Applicant had assaulted his wife, following a verbal argument. The facts alleged that the Applicant pulled his partner’s hair, pushed and kicked her out of the house.

9 Mrs Julie Skeen (the victim), on this occasion, made a statement and signed a statement in the official police notebook of Senior Constable Ginman, in which she said she had driven to a nearby friend’s home and called the police.

10 Mrs Skeen advised police that there had been further incidents of violence by the Applicant upon her over the course of their marriage; however, she had not reported any of those incidents.

11 There were no visible injuries to Mrs Skeen; however, she stated she had a sore head from having her hair pulled and a sore leg from being kicked. This too was contained in a formal statement made by Mrs Skeen and in the official police notebook of Senior Constable Ginman, copies of both her statement and Senior Constable Ginman’s notebook, were contained in material filed and served on the Tribunal.

12 The Applicant was subsequently arrested and conveyed to Coffs Harbour Police Station, where he declined to be interviewed. He was subsequently charged and served with an Interim Apprehended Violence Order for the protection of his wife. The charge was ultimately dismissed by the Coffs Harbour Local Court on 19 June 2002.

13 On 24 June 2008, the Police received an application from a Health Care Professional that the Applicant’s wife, Julie Skeen, was suffering depression, was suicidal and homicidal.

14 This notification came by way of a report pursuant to s.79(1) of the Firearms Act (hereinafter referred to as “the Act”) which states that if a health professional is of the opinion that a person to whom the health professional has been providing professional services may pose a threat to public safety (or threat to the person’s own safety) if in possession of a firearm, the health professional may inform the Commissioner of that opinion.

15 Acting on the basis of that report, police attended the Applicant’s residence, where they spoke with Mrs Skeen, who informed police that the Applicant was not home. Police left and soon after encountered the Applicant a short distance from the property as he was driving home in the opposite direction.

16 Police stopped the Applicant and advised him of the Council’s concerns about his wife, and the need to inspect his firearms and safe storage arrangements. The police then followed the Applicant home for that purpose.

17 Upon arrival, police were shown to a shed annexed to the home where two firearms were stored in a locked box, which according to police weighed less than 150kg and was not secured to the floor or wall of the structure (contrary to legislative requirements in breach of section 40 (1)(b) of the Act. )

18 The Applicant then led police inside the home to a bedroom where he produced an air rifle leaning against a cupboard. The firearm was not at that time stored in any locked receptacle, contrary to the legislation in breach of section 39(1)(a) of the Act.

19 Police seized all three firearms and left the premises a short time later.

20 Court Attendance Notices (CANs) were later served for the offences of:

‘not have approved storage’ pursuant to s.40(1) of the Firearms Act 1996; and

‘not keep firearms safely’ pursuant to s.39(1)(a) of the Firearms Act 1996.

21 After a lengthy Local Court hearing, the Applicant was convicted of both offences on 27 February 2009, fined $200 on each count, and ordered to pay costs of $73.00.

22 The Applicant subsequently appealed the decision to the Coffs Harbour District Court and on 30 July 2009, Judge Charteris upheld the appeal in respect of the charge ‘not have approved storage’ and set aside the conviction of the Magistrate in the Local Court.

23 In respect of the second charge, ‘not keep firearm safely’, the Appeal was upheld, the sentence of the Local Magistrate was set aside, and pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999, the Applicant was found guilty without proceeding to conviction and the charge was dismissed.

24 Judge Charteris, who heard the appeal in the District Court, said, at page 11, line 35:

“To see whether his Honour’s forensic advantage of observing the witnesses is to be taken into account. His Honour makes no assessment of individual witnesses at all... (at line 40); All he says is the version of the Defendant defies logic. He doesn’t deal with the adult daughter’s evidence at all ... She says that she was with her father, she heard the unlocking of keys, it was in the dark room and that he seemed to move something, a box and then later the police arrived in effect. His Honour needs to have disposed of that evidence, does he not? I’m particularly concerned about that girl’s evidence. If his Honour had said “It’s trite to observe, but the [continue on page 12, line 1] Judicial Officer must expose his reasoning and to say that the version of the appellant defies logic but not deal with the corroborative evidence concerns me a little. ...”

His Honour continues at page 13, line 10 “Again, I factor in she’s the daughter of the Appellant, so she’d be in an awkward situation. But I have to be satisfied beyond a reasonable doubt.”

At line 49 page 17 His Honour goes on to state” I, having read the material and having taken into account his Honour’s conclusion about “defying logic” I have to reach the view that I am (continuing on page 18) satisfied beyond a reasonable doubt about the air rifle, but I am not satisfied beyond a reasonable doubt about the the two weapons being secured in the box. So therefore I am going to uphold your appeal in relation to that matter.”

25 The matter came before the Tribunal on 28 September 2009 by way of a review of the Respondent’s decision of 5 March 2009 to refuse to issue a Firearms Licence, which decision was affirmed by way of internal review, on 14 April 2009.

26 The hearing in this matter was conducted with Mr Sheather, who appeared on behalf of the Commissioner, being present by means of a telephone conference and the Applicant, Mr Skeen, representing himself and being present in person before the Tribunal.

27 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

28 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)).

29 The objects of the Act are contained in s.3(2) and include the object “to ensure that firearms are stored and conveyed in a safe and secure manner” (s.3(2)(e)).

30 Section 11 of the Act - General restrictions on issue of licences, states:

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(3) A licence must not be issued unless:

(a) 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, and

(b) ...

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) ...

(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the applicant’s way of living or domestic circumstances, or

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant’s intemperate habits or being of unsound mind.

(5) A licence must not be issued to a person who:

(a) is under the age of 18, or

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or

(e) is subject to a firearms prohibition order.

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.


31 Section 19 of the Act – conditions of license, states:

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

(b) the licensee must not permit any other person to possess or use any firearm in the licensee’s possession if that other person is not authorised to possess or use the firearm,

(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee’s facilities in respect of the storage and safe keeping of the firearms in the licensee’s possession,

(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,

(e) the licence cannot be transferred to another person.

(3) A licence is subject to such other conditions as may be prescribed by the regulations.

32 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:

“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.”

33 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 laid pursuant to this particular provision.

34 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 of this section constitutes an offence.

The Applicant’s Submissions

35 The Applicant relied on a letter dated 16 August 2009 addressed to the Administrative Decisions Tribunal which stated that when he had returned to his residence on 25 June 2008, followed by the police, that he had unsecured a locked metal box from a secured metal cabinet in his shed and then proceeded to the main bedroom of his house where he had unlocked a secure metal box from behind the bedroom doorway and removed an air rifle and placed the rifle in a safe position in his bedroom, then left the room and closed the door behind him to return to the front of the house where the police had arrived.

36 The Applicant stressed that the rifles that were inspected by the police were found to be unloaded. The Applicant further stated that Officer Ginman suggested that he purchase a rifle safe. The Applicant submitted that no inspection of the ammunition storage was carried out and no statements were taken from the witnesses present. The Applicant further stated that he had been continuously licensed as a firearms holder since 1993 and held a shooter’s licence prior to that date. He further stated that he had been raised on a rural property and shown how to use and handle firearms from a young age by his father, who had served in National Service for Australia and was a member of the Albury and District Rifle Range.

37 The Applicant further noted that at the time of writing his letter of 16 August 2009 he was currently residing with his wife and two youngest of their four children on a 5 acre property west of Coffs Harbour, where he had been situated for the past fifteen years. The Applicant further stated that he understood the need to safely store firearms and to deny access by unauthorised or inexperienced persons. He noted that he had never been involved in any firearms related matter. He stated the Magistrate in the Local Court said he would be willing to recommend his firearms be returned; however, the legislation did not allow for that discretion.

38 He further noted that a judge in the District Court stated in his findings that his firearms should be returned to him, including the air rifle.

39 At the Tribunal the Applicant submitted further documentation including a letter of reference from a neighbour dated 8 August 2008 from a Ms Lindsay, which spoke of her friendship with the Applicant and his family over fourteen years and who believed that he was a gentle and trustworthy man and willing to help herself and her husband with any problems concerning their horses.

40 There was a further letter provided from Ms Cheryl McCombie of McCombie & Associates, psychologists, dated 27 August 2009, in which Ms McCombie stated her belief that Mrs Skeen did not appear to suffer from anxiety, obsessive and compulsive behaviours and depression, and that she (Mrs Skeen) did not present as being at risk of suicide, and she ventured to comment that she did not think that Mrs Skeen was in danger of taking her life in the past and even more unlikely now. She stated: “She does not possess an emotional state conducive to suicide”.

41 The Applicant also provided a copy of a letter from a Lifeline counsellor, by the name of Lyn Anderson, which stated that she had seen Mrs Skeen for three counselling sessions, commencing on 23 July 2008 and “She has given no indication of being a danger to others. She has assured me she will continue to come to counselling”.

42 Evidence was given by Mr Skeen that Mrs Skeen is no longer living with him and has been living apart for some four to five months in Coffs Harbour with her eldest daughter and the youngest daughter remains living with Mr Skeen on the property.

43 The Applicant further provided two statutory declarations from his two sons who no longer live at home, one Timothy James Skeen and the other Jayden David Skeen, both of whom attested to their long cohabitation with their parents, 17 and 18 years, respectively, suggesting that they had never witnessed or been involved in any form of domestic violence.

44 Mr Skeen also provided the Tribunal with a copy of a decision of Yaghi v Commissioner of Police (2001) NSWADT 91 and referred the Tribunal in particular to paragraph 44, listing some of the considerations which were relevant in such an application and drawing the Tribunal’s attention to the fact that his ammunition was located separately, and this supported the notion that the firearms were not offering a threat.

45 He reiterated his belief that the firearms were properly stored and he did not believe that it posed a real danger because there was no-one at risk at present.

46 He attested to his reasons for requiring the firearms as being proper reasons to anaesthetise animals in distress and to control feral animals.

47 He further provided an invoice from Coffs Harbour Disposals where he had obtained a quote for the purchase of a 5 gun safe at the anticipated costs of $350. The Applicant stressed he had not purchased such a safe but simply had taken the precaution of understanding what the cost would be and indicated in evidence that were he to be successful in his application that he would install such a safe.

48 Mr Skeen maintained that domestic violence had never taken place and he cited the statutory declarations of his two sons in support of that submission and further suggested that his daughters were available to give evidence in support.

49 The Applicant called his wife, Mrs Skeen, to give evidence from the witness box. Mrs Skeen was unable to recall the event in October 2001 when the domestic violence was said to have occurred. She did, however, identify her signature on the statement which she made to police regarding that event and the notes that had been recorded by the police officer at the time of the incident and accepted that that was her signature. She nevertheless maintained she had no recollection of the event. Mrs Skeen verified she was living in Coffs Harbour and had been doing so for some four to five months and said she was feeling better and no longer felt the isolation which was associated with living on a property.

The Commissioner’s Submissions

50 The Respondent relied on:

Documents filed on 3 August 2009 pursuant to s.58 of the Administrative Decisions Tribunal Act 1997.

Statement of Senior Constable Ginman dated 4 September 2008.

Statement of Constable Wayne McIntyre dated 5 September 2008.

Certificate issued by registered psychologist pursuant to s.79 of the Firearms Act alerting police to a concern for the welfare of Julie Skeen in regard to accessing her husband’s firearms.

A copy of a District Court appeals sheet dated 30 July 2009.

A transcript of Local Court criminal proceedings on 25 February 2009 and concluding on 27 February 2009.

A copy of a criminal Brief of Evidence in respect of an earlier assault allegation against the Applicant upon his wife Julie Skeen in 2001.

A comprehensive set of submissions dated 2 September 2009.

A further set of submissions dated 21 September 2009 entitled Respondent’s Supplementary Submissions.

A copy of a transcript of District Court proceedings.

51 It was the Respondent’s submission that the Applicant had breached s.39 of the Firearms Act which requires that firearms be stored safely in that the Applicant had left the firearm unsecured in a bedroom of the house, which meant that the firearms were accessible by his sick wife and young children (none of whom have firearms licences) and that the Applicant failed to take “reasonable precautions” to ensure “safe keeping” and that the firearms are “not stolen or lost” or “come into possession of a person who is not authorised to possess the firearm”.

52 The Respondent further submitted that the Applicant had breached s.40 of the Act which relevantly prescribes how firearms are to be stored, in particular, in his failure to store the firearms in a locked receptacle “of a type approved by the Commissioner” (s.41(1)(a) and (b)) which weighs less than 150kgs and must be fixed in order to prevent its easy removal.

53 The Commissioner’s representative acknowledged that the Applicant had been upheld on appeal in respect of the charge “not approved storage” and the conviction by the Magistrate in the Local Court had been set aside, but nevertheless maintained that a different standard of proof applies in proceedings before the Tribunal, namely the civil standard of the balance of probabilities as opposed to the criminal standard of proof beyond a reasonable doubt; citing the statements made by the Appeal Panel in Osborne v Commissioner of Police (GD) [2000] NSWADTAP 10 per O’Connor DCJ, Davidson JM and Bolt M at 27:

“The Tribunal is not bound by principles of comity or rules as to binding precedent to adopt the reasoning of a Local Court in similar matters dealt with there prior to the transfer of the relevant jurisdiction to the Tribunal. Moreover, the Tribunal has been established with the avowed purpose of providing a specialist forum for the resolution of certain classes of disputes, in this instance application for merits review of a decision of administrators. Whilst it has the status of an inferior court or tribunal, it stands outside and above Local Courts in the hierarchy of courts and tribunals in the State.”

54 The Respondent drew the Tribunal’s attention to the statements made by Magistrate Linden in first instance when the defendant’s explanation of events, together with the statements made by witnesses caused the Magistrate to prefer the police version of events, saying:

“With respect that defies logic ... the police estimate is clearly the one that I accept. I am satisfied that he was present with the car with the lights illuminated as soon as they arrived, that they were taken into the shed ... and the items were found in situ and that he had not tinkered with them in the manner that he describes and following that view in each matter the offence is proved.”

55 The Respondent further contended that it was unlikely that the District Court made any findings as to the credibility of witnesses as it was relying upon the transcript of Local Court proceedings rather than hearing from the witnesses and making findings as to credit all over again. Accordingly, it was the Respondent’s contention that it was unlikely that the District Court made any findings as to credibility of the witnesses, which would leave the findings of the Local Court (in this regard) undisturbed.

56 The Respondent drew the Tribunal’s attention to the questions put by his Honour Judge Charteris to the applicant during the District Court hearing of the appeal, where he said:

At page 4, line 38: “The Magistrate obviously didn’t believe you, did he?”.

At page 6, line 1: “But his Honour rejected your evidence...”

And at line 24 page 7: “Yes but while I am not being an advocate for his Honour’s reasoning, nor am I being opposed to it. But why would you, knowing the police are behind you and knowing that they want to inspect the storage arrangements for the firearms, why would you interfere with the existing relationship because you didn’t need to do anything. You could have gone into the bedroom and said look at that secure relationship, there’s a firearm in there, it’s the air rifle and it’s locked away – and then you could have taken the police to the shed and said there are two guns in that ammunition box and it is attached by two padlocks to a cupboard. You would have been able to say what a good secure system I’ve got. Why would you go to the steps of taking guns, or one gun out of the secure environment. Why would you go to the step of taking the two guns out of the box and taking the box off the cupboard they were attached to?”

57 The Commissioner submitted that public interest dictates and requires that licensees are aware of, and comply with, the legislative requirements of the Firearms Act and that those who were afforded the privilege of a firearms licence must act responsibly in storing their firearms in accordance with the legislative requirements (Morris v Commissioner of Police [2002] NSWADT 223.

58 The Respondent submitted that there was nothing in the facts of the present case which took it outside the usual class of case of contraventions in respect of failing to meet the safe storage requirements, such as to say that public safety was not compromised and accordingly, it was not in the public interest to issue the Applicant with a firearms licence as the applicant had not shown that there were persuasive and relevant considerations which took it outside the ordinary case. (Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127.

59 The Respondent further submitted that the Applicant’s abject maintenance that he did nothing wrong in respect of his firearms storage served as an indication that he lacked remorse or insight as to his obligations under the Firearms Act by virtue of his continued dispute as to the findings of not only the Local Court but also the District Court.

The Issue

60 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in refusing to issue a firearms licence to the Applicant. Under s.63 of the Administrative Decisions Tribunal Act, the Tribunal must take into account any relevant factual material and any applicable or unwritten laws. The Tribunal may then affirm, vary or set aside the Commissioner’s decision.
Findings

61 The Honourable J.W. Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading Speech on 25 June 1996 stated, at page 3559 of Hansard:

“Legislation should have the effect of making a failure to store firearms in a manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms. Measures should be indicated in legislation for the storage of firearms which are specific and clear so that firearms owners and possessors know their obligations and the following minimum basic standards should apply.”

62 The Attorney General also stated, at page 3562 of Hansard:

“As is provided under the existing law the police will be required to seize firearms or ammunition that is not correctly stored. The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licensed or trained in their safe use, accidental shootings can occur and it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents.”

63 The Applicant was convicted of breaches of the Firearms Act in:

‘not having approved storage’ pursuant to s.41

‘not keeping firearms safely’ pursuant tos.39(1)(a) of the Act.

64 The Applicant subsequently appealed the decision to the District Court and was upheld on appeal in respect of the charge ‘not have approved storage’ and set aside the conviction of the Magistrate in the Local Court.

65 In respect of the second charge, ‘not keep firearms safely’ , the appeal was upheld, the orders of the Local Court Magistrate were set aside, and pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999 the Applicant was found guilty without proceeding to conviction and the charge dismissed.

66 I am of the view that if a licence holder does not have sufficient appreciation of the importance of safe storage, the Tribunal cannot be confident that their firearms will be stored safely in future. The safe storage requirements set out under Part 4 of the Firearms Act are fundamental in their nature and as was observed by Higgins JM in Bevan v The Commissioner of Police [2004] NSWADT at paragraph 26, they go to the crux of the principles and objectives of the Act:

“26. ... 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 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 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 s.3(1)(a) of the Act).”

67 Having regard to the objectives of the Act as set out in s.3 of the Act, that the possession and use of firearms 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 promotion of safe and responsible use and storage of firearms (s.3(1)(b)(ii)).

68 It remains to consider the conduct of the Applicant in the light of these objectives. (Yaghi v Commissioner of Police, NSW Police Service [2001] NSWADT at 37). The Applicant was upheld on appeal with respect to his conviction for ‘not have approved storage’ in breach of s.40(1) of the Act but while he was found guilty on appeal in respect of the second charge of ‘not keep firearms safely’, in breach of s.39(1)(a) of the act, he was nevertheless found guilty, albeit without proceeding to conviction, pursuant to s.10 of the Crimes (Sentencing Procedure) Act.

69 The Applicant maintains that he should not have been found guilty of either offence and that his explanation as contained in his letter of 16 August 2009 should be accepted. It is not open to the Tribunal to ‘go behind’ the findings of guilt. In May v Commissioner of Police [2001] NSWADT 82, per Lees JM, it was stated at 48:

“This Tribunal is left with the facts of convictions and their confirmation on appeal. This Tribunal cannot go behind the convictions and making findings of fact relating to the same incidents. Although Mr May maintains his innocence of the charges, he has not challenged the fact that he has been convicted. The convictions are a relevant considerations in the Tribunal’s exercise of the revocation discretions.”

70 While noting that a conviction was recorded in respect of the ‘not keep firearms safely’ pursuant to s.39(1)(a) of the Act, it has been accepted that the Tribunal looks to the person’s conduct, not the fact of the conviction and accordingly, a conviction of itself will not ordinarily be enough for the Tribunal to make an adverse finding on fitness and propriety (Bazouni and Ors v Commissioner of Police [2002] NSWADT 100.

71 Conversely, the fact that an applicant has escaped criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. The administrator at all times has to have regard to the systematic implications of its decisions (Lynch v Commissioner of Police, New South Wales Police Service (GD) [2002] NSWADTAP 43 at 47:

“47. In this instance the contraventions were numerous and very serious. That Mr Lynch escaped criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that are seen as credible by the broader community and sends the appropriate signal to licence holders as to what is unacceptable. The administrator and the Tribunal cannot take an approach, as seems to have been alleged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.”

72 The Applicant’s wife, Mrs Julie Skeen, has reported a history of violence in the marriage which gave rise to the issue of an Apprehended Violence Order against the Applicant albeit the assault charge was ultimately dismissed and the matter was not further prosecuted. This history, together with the notification of 24 June 2008 from a health professional under s.79 of the Firearms Act expressing concern of the risk that the medical condition of the Applicant’s wife, Mrs Skeen, may pose a threat to public safety (or threat to her own safety) if in possession of a firearm.

73 It is against this backdrop that the Applicant has failed to keep the firearm safely in accordance with the provisions of s.39(1)(a) of the Act. While Mrs Julie Skeen gave evidence before the Tribunal that she did not recall the incident in 2001, and now was living separately from the Applicant, I found her to be an unconvincing witness in her total inability to recall the 2001 incident in any respect. Mrs Skeen frequently looked to the Applicant for guidance as to how to respond to the questions asked of her concerning the inconsistency between her current inability to recall anything and her signed statement of 2001, namely when she stated at paragraph 4:

“As he was trying to pull me out of the chair, Jayden obviously punched him or kicked him and I saw him on the floor holding his head. Then as he pushed me out the door he kicked me at the same time. He kicked me in the back of the leg ...getting in the car he said something like “Don’t come back again, don’t come inside, I’ll hit you again” or something like this.”

74 In her statement, Mrs Skeen went on to say “Andrew and I have been married for about 16 years. There has been violence before in the relationship but I have never reported any before”. This statement accorded with the notes of Senior Constable Ginman, a copy of which was in material filed and served on the Tribunal.

75 While the Applicant provided two statutory declarations from his sons, Timothy James Skeen and Jayden David Skeen, which attested to their long cohabitation with their parents, 17 and 18 years, respectively, suggesting that they had never witnessed or been involved in any form of domestic violence, neither of the boys were available for cross-examination. There was a clear inconsistency between the statement of Jayden David Skeen and the reference to his involvement in the domestic violence in the statement of the Applicant’s wife of 28 September 2001. This inconsistency was also evident in the statements made by the two constables at the time of the domestic violence in 2001.

76 The inconsistency was further marked by the s.79 Notice of 24 June 2008 made pursuant to the health professional’s concern at a time subsequent to the incident of alleged domestic violence, suggesting that there may be some risk to the Applicant’s wife in the surrounds of firearms at that time.

77 The Tribunal further noted the inconsistency between the Applicant’s representation, as contained in his letter of 26 August, that:

“I currently reside with my wife and two youngest of our four children, on a 5 acre property, west of Coffs Harbour, where we have been situated for the past 15 years.”

78 And the statements made before the Tribunal that he had not been cohabiting with Mrs Skeen for some 4 to 5 months, which evidence was supported by Mrs Skeen.

79 The Tribunal noted a further inconsistency between the s.79 Notice of 24 June 2008 and the retrospective review contained in the psychologist’s report of Ms Cheryl McCombie of McCombie & Associates dated 27 August 2009, suggesting that there would be no risk of the Applicant’s wife taking her life:

“I do not think that Ms Skeen was in danger of taking her life in the past and suicide is even more unlikely now. She does not possess an emotional state conducive to suicide.”

This is obvious in response to the facts that Ms Skeen is, apparently, no longer living with her husband, and that she has long-term plans for her future career, and living arrangements”.

80 Ms Cheryl McCombie was not available for cross-examination and her statement was only provided to the Tribunal and the Respondent on the day of the hearing; and accordingly, I attach less weight to Ms McCombie’s evidence.

81 The inconsistencies enumerated above cause the Tribunal to have concerns with respect to the veracity of the Applicant’s evidence.

82 These concerns were fortified by the further inconsistency between the statement of the Applicant’s son, Jayden David Skeen, stating that he had never witnessed, nor was involved in any form of domestic violence, and the reference of Mrs Skeen in her statement relating to the incident in 2001, namely:

“As he was trying to pull me out of the chair, Jayden obviously punched him or kicked him, and I saw him on the floor holding his head. ...”

Neither Jayden nor his brother, Tim, were available for cross-examination in respect of their statements and Mrs Skeen was unable to recall anything to do with the incident in 2001.

83 The issue of a licence holder’s failure to meet the requisite storage requirements contained in Part 4 of the Act have been considered in a number of cases that have come before the Tribunal when determining whether to issue or revoke a firearms licence. In the case of Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91, Judicial Member Montgomery stated that the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence. The dangers of failure to secure firearms was demonstrated in this case when the two rifles owned by Mr Vella, together with the ammunition were found hidden in an unlocked cupboard, and were subsequently used by the offender who invaded the premises and used the firearms against Mr Vella’s daughters.

84 The Applicant referred the Tribunal to the decision of Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91, at para [44], for considerations that might be relevant in circumstances where an Applicant had failed to meet the general safe-keeping requirements relating to firearms. Whilst I believe I have already addressed the substance of these considerations in the context of Bevan v The Commissioner of Police [2004] NSWADT 26, in deference to the reliance placed by the Applicant on this case, in respect of each of these, I comment as follows:

Public or private location of licensee’s firearms

The firearms were located on the farm but accessible to the Applicant’s wife and children and anyone else who may attend the Applicant’s premises.

The presence or absence of the Licensee at that location

At the time of the incident, the Applicant was returning to the premises but not present at the time of the initial police visit.

The security of the location

The police allege the storage requirements were not adequate; although this was not upheld on appeal. But the conviction, concerning not keeping firearms safely, suggests that security was less than ideal .

The accessibility by unlicensed persons to firearms

Noted above that family members were able to access the firearms.

Time of day

The inspection which gave rise to the police charges against the Applicant, concerning the failure to meet requirements of safe storage and safe keeping, took place at about 6.30 pm in the evening.

Whether the firearms were loaded or not

The firearms were found to be unloaded.

The location of ammunition for the firearms

The ammunition was stored separately.

Whether the nature of the breach was fundamental, trivial, or excusable

In all the circumstances, I believe the nature of the breach could not be described as trivial or excusable, and in fact was fundamental.

Whether the safety of the public has been or is likely to be compromised

There was little doubt the safety of the public, in particular the Applicant’s wife and family was compromised.

85 The Applicant has not shown that there were persuasive and relevant considerations which took the case outside the ordinary: Phegan v Commissioner of Police, NSW Police Service [2002] NSWADT 127.

86 Furthermore, the Applicant’s insistence that he did nothing wrong in respect of his firearms storage, serves as an indication that he lacked remorse or insight, as to his failure to comply with his obligations under the Firearms Act, causes me to be unable to say that there is virtually no risk that the Applicant would not pose any risk to public safety if he were given access to a firearm: Ward v Commissioner of Police NSWADT 28.

87 Therefore, in accordance with the provisions of s.11(7) of the Act, it is not in the public interest that the Applicant be issued with a firearms licence, as the public could not be confident that the Applicant would respect the paramount concern for public safety and ensure his compliance with the legislative requirements of the Firearms Act 1996.

88 Accordingly, I affirm the decision of the Commissioner of Police to refuse to issue the Applicant with a firearms licence.

Order

The Decision of the Commissioner of Police, New South Wales Police Service, to revoke Mr Skeen’s firearms licence is affirmed.