CITATION: Lannoy v Commissioner of Police, NSW Police [2006] NSWADT 330 DIVISION: General Division APPLICANT PARTIES: Wesley Norman Lannoy RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 063286 HEARING DATES: 26/10/06 SUBMISSIONS CLOSED: 10/26/2006 DATE OF DECISION: 11/20/2006 BEFORE: Fitzgerald K - Judicial Member CATCHWORDS: Jurisdiction MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Firearms Act 1989 APPLICANT G Kidd, Solicitor REPRESENTATION: RESPONDENT A Venditti, agent ORDERS: The matter for preliminary hearing be determined as follows: On 3 October 1989 Mr Lannoy was personally served with a Firearms Prohibition Order and it is reasonable to infer that he knew of the prohibition from that time. REASONS FOR DECISION Background 1 On 27 July 2006, the Applicant sought review of a Firearms Prohibition Order placed on him in 1989. Various jurisdictional issues are raised by such an application but it was first listed for preliminary hearing only on the issue of whether the Firearms Prohibition Order was served in 1989 and when Mr Lannoy became aware of the Firearms Prohibition Order. Applicant's Evidence 2 The Applicant provided a statement and gave oral evidence. It was his evidence that he applied to be a Paintball Marshall at Bundy's Paintball Field Pty Ltd on 8 May 2005. He received a letter from the Firearms Registry on 16 June 2005 that he was not successful in his request to be listed as a Games Director with Bundy's Paintball Field Pty Ltd as he was a "prescribed person" under the Firearms Act 1996 due to being subject to a prohibition order since 1989. The Applicant stated that this letter of 16 June 2005 was the first that he had heard of the prohibition order. 3 Mr Lannoy also provided evidence that in his application to the Firearms Registry for a permit to possess a paint-ball gun (this application was dated 23 June 2005, six days after the date of the letter from the Firearms Registry) he wrote, in response to a question as to whether he had had a firearms licence /permit suspended, cancelled or revoked, "Possibly in 1987-1988. I did not receive a letter or court order but it may have happened. I am making a note of it to draw your attention to it". He circled the appropriate box and placed a question mark (?) next to it. I note that in response to the question whether he had been subject to a firearms prohibition order he ticked "No". The copy of this application that was provided as part of the police bundle had the "No" crossed out and a "Yes" marked with "See Attachment". It is not clear what the attachment was, as it did not appear in the police bundle. 4 In his statement Mr Lannoy denied having been served with the Prohibition Order and specifically that he was unaware of the order when seeking the paint-gun permit. He stated that at the time that the Prohibition Order was allegedly served he was employed as a Council worker. However, Mr Lannoy stated that he was very rarely at the Council depot working but rather spent the majority of his days on various work sites in the Local Government Area. He also stated that he was not asked to surrender his firearms at that time. He stated that the first he knew of the Prohibition Order was when he received the 16 June 2005 letter from the Firearms Registry. His statement annexed a copy of the Firearms Prohibition Order that he had been provided with. It was dated 3 October 1989 and including an affidavit of service from Constable Belinda Louise Bailey who at the time was stationed at Gosford Police Station. 5 In oral evidence and as a result of cross-examination, Mr Lannoy gave evidence that he no longer had a copy of the licence that was the subject of the 1989 prohibition order but said it was lost as he did not remember surrendering it to the police. He acknowledged that it may have been held by Woy Woy police. 6 He confirmed that on 3 October 1989 he was working at Gosford City Council but that he did not believe he was at the depot that day although he could not say categorically that was the case. His evidence was that he could not be 100 percent sure that he was not at the depot but that he was 100 percent sure that he had not talked to the police that day. He thought he would have remembered such a conversation. He acknowledge that the passage of time made it difficult to remember the details of the relevant day but between 1989 and 2005 he had had no reason to contact the Firearms Registry. 7 Mr Lannoy's evidence was that prior to lodging an application with the Firearms Registry for a permit to possess a paint-ball gun he undertook a Firearms Safety Awareness Course. 8 By way of submission, Mr Lannoy's representative reiterated that Mr Lannoy had been candid in the June application and that it would have been foolish for him to make such an application in circumstances where he knew he was prohibited from doing so. He had assumed that as his offences occurred more than 10 years ago there was no reason preventing him from applying to the Firearms Registry. Respondent's Evidence 9 Mr Venditti, agent for police, provided the Tribunal with a bundle of documents. These included a copy of the Firearms Prohibition Order dated 3 October 1989 with the affidavit of service of Constable Bailey. The affidavit noted that service was personal service at the Erina Council Depot, Erina. 10 The bundle also contained a note to the Patrol Commander from Constable Bailey dated 25 October 1989. Point 1 of the note stated that Wesley Norman Lannoy had been served on 3 October 1989 by Constable Bailey with Senior Constable McIntyre. Point 3 of the note stated that Mr Lannoy's licence was being held at Woy Woy Police Station and a handwritten note at the bottom of the page states that the "licences in question were returned to this office on 6/11/1989". 11 Mr Venditti relied on each of these documents as a contemporaneous record and pointed to the fact that Mr Lannoy acknowledged that his address details were accurate and that this evidence was to be preferred over Mr Lannoy's memory given the time that had elapsed. Decision 12 The correct and preferable decision is that Mr Lannoy was served with the Firearms Prohibition Order on 3 October 1989 and it is reasonable to then infer that he knew about the order at that time. 13 I accept that the passage of time may have impacted on Mr Lannoy's memory of events of 3 October 1989 but the two contemporaneous documents point to service having been effected. Neither party called either of the relevant police officers who were present at the time of service. However, there was no evidence to suggest that these documents were not an accurate record of events or contained any false information. 14 Mr Lannoy's statement on his 23 June 2005 application does not necessarily demonstrate a lack of knowledge about the prohibition but in my view shows some awareness of it. I note that this application was dated approximately 6 days after the 16 June 2005 letter in which the Firearms Registry notified Mr Lannoy of the prohibition although whether or not Mr Lannoy received it was not a matter of evidence and does not impact upon the above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.