Moody -v- Commisioner of Police, New South Wales Police [2002] NSWADT 146

CITATION: Moody -v- Commisioner of Police, New South Wales Police [2002] NSWADT 146 DIVISION: General Division APPLICANT PARTIES: Frederick Stephen Moody RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023114 HEARING DATES: 25/07/02 SUBMISSIONS CLOSED: 07/25/2002 DATE OF DECISION: 08/19/2002

BEFORE: Hennessy N (Deputy President) APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 Cleofe -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2 APPLICANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: The Commissioner's decision to revoke the applicant's firearms licence is set aside.

Introduction 1 On 14 April 2002 the Commissioner of Police (the Commissioner) revoked Mr Moody's Category A, B and C firearms licences. These licences enabled Mr Moody to engage in vermin control on his property. The reason for the revocation was that Mr Moody had been found guilty of not keeping firearms safely. He was convicted in the Local Court on 5 February 2001 and fined $500. On appeal to the District Court the conviction was confirmed but the fine was reduced to $250. On 24 May 2002, Mr Moody applied to the Tribunal for a review of the decision to revoke his licence. Jurisdiction 2 The Tribunal has jurisdiction to determine this matter pursuant to s 75(1)(c) of the Firearms Act 1996 ( Firearms Act ) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Evidence 3 The documentary evidence in this case consisted of the Commissioner's file, a letter from Mr Moody dated 22 July 2002 including some photographs, and a letter from Mr Geoffrey Knight, Seabreeze Real Estate Company dated 12 July 2002. Mr Moody and his partner Jo Ritchie, gave oral evidence. 4 In relation to the circumstances of the offence, Mr Moody stated that while waiting for a person to come and inspect a computer he had advertised for sale, he took out his firearms from an old padlocked fridge to clean them. When he was still cleaning them he saw a car coming towards his property so he quickly hid the firearms. He asked his partner, Jo Ritchie, to hide one of the rifles. She gave evidence that she put it under a bed in the caravan adjacent to the shed where they were living. When the person inquiring about the computer had left, she told Mr Moody where she had put it. Mr Moody put two of the firearms under a blanket on a stretcher in the shed and one underneath a baby's playpen towards the back of the shed. 5 Mr Moody said that he hid the firearms because he didn't like people to know that he had firearms on his property. He said it would have taken him at least four minutes to put the firearms back in the cabinet because it had five padlocks. 6 Within minutes of the man inquiring about the computer leaving, Mr Moody saw another car coming towards his property. Two police officers arrived and asked Mr Moody about the whereabouts of a neighbour. Before leaving they asked Mr Moody if he had any firearms on the property. Mr Moody retrieved the firearms from the places he and his partner had hidden them earlier. 7 Mr Moody said that the police officers walked past the firearms cleaning kit which was on the table. He didn't tell them that he had been in the process of cleaning the firearms when the man inquiring about the computer had called. According to Mr Moody, the police officers should have noticed the cleaning equipment but they were not interested. 8 According to the police fact sheet and the statement of Senior Constable Corbett, police officers visited Mr Moody's property one evening. When police inquired about whether Mr Moody owned any firearms Mr Moody told them he had four rifles. Mr Moody said that he kept the firearms stored in an old fridge in the shed where he was living. 9 At the request of police officers, Mr Moody went to a caravan and came out with a rifle. Mr Moody told the police officers that the rifle was under a bed in the caravan. Mr Moody then retrieved three more rifles, two from under a blanket on a camping stretcher near the entrance to the shed and one from behind a baby's play pen towards the back of the shed. Senior Constable Corbett said that he did not see an appropriate gun cabinet but he does not remember looking for one or requesting to see one. He also said that Mr Moody did not draw his attention to any gun cleaning equipment or claim to be cleaning any firearms when he was there. 10 Mr Moody said that he has held a firearms licence for 30 years and has never had any problems. He lives on a farm 30 miles from town at the end of a "no through road" so there is no passing traffic and therefore "no danger to anyone." 11 Mr Moody said that he has raised chickens and ducks on his property and has a big problem with predators such as wild dogs, feral cats and foxes. This was confirmed by photographs and evidence from Mr Geoffrey Knight of Seabreeze Real Estate Company. Relevant legislation 12 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out the grounds on which the Commissioner may revoke a licence. The provisions in bold are those relied on by the Commissioner in this case. (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: