Mercer v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 250

CITATION: Mercer v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 250

DIVISION: General Division

APPLICANT PARTIES: Adam Mercer RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 053384

HEARING DATES: 17 March 2006, 29 May 2006, 18 December 2006, 23 January 2007, 4 May 2007

SUBMISSIONS CLOSED: 4 May 2007

DATE OF DECISION: 15 October 2007

BEFORE: Leal S - Judicial Member

CATCHWORDS: 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 Act 1996 Firearms Regulation 2006

Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 CASES CITED: Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59 Re Greenham and Minister for Capital Territory (1979) 2 ALD 137

APPLICANT G Sundstrom, barrister REPRESENTATION: RESPONDENT W Pisani, solicitor

ORDERS: The decision of the Commissioner to revoke the applicant's firearms licence is affirmed

REASONS FOR DECISION Background 1 Mr Mercer's firearms licence was revoked by the Commissioner for Police on 11 September 2003 and confirmed on internal review on 15 October 2003. 2 The incident that led to that decision occurred on 22 October 2002 after Mr Mercer informed police that his ex-wife's partner had threatened him. 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 to have approved storage.' 3 The Commissioner also alleges that on 22 October 2002, Mr Mercer was verbally abusive during several telephone conversations with his ex-wife 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. 4 Mr Mercer appeared at Penrith Local Court in relation to the summonses on 4 August 2003 and 3 September 2003. One of the charges was withdrawn after the prosecution case had been closed and following an invitation to do so by the presiding Magistrate.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 prima facie case was established. 5 Following the court case, the Commissioner for Police revoked Mr Mercer's firearms licence. The statement of reasons explained the revocation as follows: I am satisfied that it is not in the public interest for you to continue to hold a firearms licence, in that police were called to your residence on 22 October 2002 when you informed police of your intent to shoot anyone who came. 6 The statement of reasons also stated that Mr Mercer had been found guilty of the offence of not having approved storage for his firearms at Penrith Local Court on 3 September 2003. In fact, the matter was dismissed. The transcript, which forms part of the evidence in this matter, confirmed that the case was dismissed following an application by the prosecution to withdraw the information. Following the dismissal of the case, the court made the recommendation that the (then) suspension of Mr Mercer's licence be lifted. 7 Mr Mercer sought a review to this Tribunal against the revocation of his firearms licence. On 4 February 2005, the Commissioner's decision to revoke Mr Mercer's firearms was set aside. 8 The Commissioner's appeal to the Appeal Panel of this Tribunal was upheld on 4 November 2005 (Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55). The matter was then part heard before me on 17 March 2006 and 29 May 2006. 9 On 29 May 2006, the Commissioner sought to tender confidential material to the Tribunal, in the absence of Mr Mercer and his representative, in accordance with s 75 of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 75(5) of the Firearms Act 1996 (Firearms Act). 10 Mr Mercer submitted that the Commissioner should be estopped from relying on this material on the basis that it should have been tendered to the Tribunal in the earlier proceedings. On 22 September 2006, I ordered that the respondent should not be estopped from relying on confidential information put before the Tribunal on 29 May 2006 on the basis that the confidential documents in question deal with allegations against Mr Mercer post-dating the first day of the present re-determination hearing. For this reason, I was not satisfied that the so-called Anshun estoppel principle was applicable in this case. 11 Further hearings were held on 18 December 2006, 23 January 2007 and 4 May 2007. Jurisdiction Revocation of licence 12 The Tribunal has jurisdiction to determine this matter pursuant to s 75(1)(c) of the Firearms Act and s 38 of the ADT Act. 13 Under s 24 of the Firearms Act, a firearms licence can be revoked if the licencee contravenes any provision of the Firearms Act or the regulations, whether or not the licencee has been convicted of an offence for the contravention. A firearms licence can similarly be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a license or for any other reason prescribed by the regulations. 14 Regulation 19 of the Firearms Regulation 2006 provides that the 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. 15 Section 75 (1)(c) of the Firearms Act provides that a person may apply to the Administrative Decisions Tribunal for a review of the decision to revoke a firearms licence or permit issued to the person. Confidential information 16 The respondent sought to tender evidence to the Tribunal in confidence. 17 Section 75(5) of the Firearms Act states that: In determining an application for a review of any such decision, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and (b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for review and the applicant's representative. 18 The information referred to in section 11(5A) and section 29(3A) of the Firearms Act is 'any criminal intelligence report or other criminal information held in relation to the person that the person is a risk to public safety, and the issuing of the licence would be contrary to the public interest.' 19 Section 75 of the ADT Act provides, relevantly, as follows: (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. 20 Statutory powers which permit a Tribunal to take the course adopted by the Tribunal, such as s 75(2) of the ADT Act, are strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness. 21 Section 3 of the Firearms Act sets out the underlying principles of the Act which are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. Review decision 22 In undertaking a review of the merits of the original decision, the role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It may then confirm the original decision, vary it, or set it aside and substitute another decision. In accordance with the principles set out in Re Greenham and Minister for Capital Territory (1979) 2 ALD 137, the Tribunal has power to review decisions, and not the reasons given for decisions, and in doing so is not restricted to the material before the decision-maker. Issue 23 The issue to be determined in this case is whether, given the discretion to revoke a licence in accordance with s 24(2) of the Firearms Act, the Commissioner made the correct and preferable decision in revoking Mr Mercer's licence. Evidence Introduction 24 This matter has had a lengthy history. Documentary evidence was received into evidence, without objection, in relation to Mr Mercer's licensing and criminal history and in relation to the incident of 22 October 2002, which led to the initial revocation of Mr Mercer's licence. 25 Mr Pisani, for the Commissioner, sought to tender further evidence in confidence, that is, in the absence of the applicant and his legal representatives. (Subject to suppression order) 26 (Subject to suppression order). As stated above, I found that the respondent was not estopped from tendering this evidence on the basis that (Subject to suppression order), the evidence could not have been tendered in the earlier proceedings. As the role of the Tribunal is to review the decision made, and not the reasons for the decision made, the Tribunal is entitled to have regard to evidence post-dating the original decision to determine, whether at the time of the Tribunal's decision, the decision to revoke Mr Mercer's was the correct and preferable one. 27 I accept the principle that once the decision is made to include confidential material, the probative value of the material must be very high: QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59. 28 In light of the underlying principles of the Firearms Act which highlight the need to ensure public safety, I determined that the written confidential material put before me had a high probative value. (Subject to suppression order) For this reason, I accepted the material into evidence in this matter. 29 Accordingly, the evidence I have considered in reaching my decision in this matter includes material which was available to all parties – namely evidence in relation to Mr Mercer's licensing history, his criminal history and the incident of 22 October 2002 - in addition to confidential material (Subject to suppression order). Non-confidential evidence 30 Mr Mercer was first issued with a firearms licence on 21 February 1994. Further licences were issued on 16 February 1999, 9 August 1999 and 26 September 2000. Mr Mercer's firearms licence remained current until its revocation on 11 September 2003. 31 Mr Mercer has had no criminal convictions since 1991 when he was convicted on two counts of malicious damage and one count of assault. 32 Included in the exhibits for this matter are the statements in relation to the alleged events of 22 October 2002 and the transcript from the subsequent Local Court proceedings. 33 In his statement, Mr Mercer refers to his criminal history, explaining that the incidents leading to his criminal convictions occurred during a difficult time in his life, and followed his parents' divorce. According to Mr Mercer: These influences have long since gone, and…I have had many intervening years to mature and settle myself into society as a responsible adult. 34 In his statement, Mr Mercer denies that he was verbally abusive to his ex-partner, Joadie Knight, and her daughter on 22 October 2002. He further explained the incident of 22 October 2002 in the following terms: It is stated that I was under the influence of alcohol following an argument over the telephone with Mr Knight and contacted St Marys Police Station by telephone saying 'I would shoot anyone who came near my premises.' This may be what was alleged by Police – it was certainly not what happened. I telephoned the Police Station requesting assistance after Mr Knight, a convicted firearm murderer recently released from prison, threatened to come to my place and shoot me. I had every reason to believe he would carry out his threat, and took my 22 rifle from its security, and placed cartridges in the magazine – NOT in the breech. I was certainly not intoxicated, and all evidence before the Court at the time indicated I had drunk less than one can of beer… I do not deny alcohol was on my breath when the Officers called, but I certainly was not unsteady on my feet, except momentarily after the arresting constable struck my head violently against the veranda stanchion. I strongly deny I told the Police I had consumed a few beers – I had not, and this evidence was not accepted by the Court – I say it was a fabrication or a mistake. 35 Mr Mercer explains his ex-partner's application for an Apprehended Violence Order (AVO) against him as follows: The AVO taken out against me on 25th October 2002 was dismissed and withdrawn as a result of Ms Joadie Knight, the Complainant failing to appear at Court and failing to prosecute her complaint. I say this was a malicious complaint, motivated solely by spite, and was an attempt to have me disqualified from holding a firearms licence. 36 Mr Mercer made the following declarations in his statement: I say I have made every effort to comply with legal and social requirements over the intervening years since my younger days, and that I appear to have been regarded as a fit and proper person to hold a firearms licence during that time, and that the more recent events at Penrith Local Court do not disqualify me as a fit and proper person. I say that I have not deliberately or carelessly contravened any section of the Firearms Act or its Regulations, and have not been found to have done so in a Court of Law in the State of New South Wales. I note the Commissioner considers that it is not in the public interest for me to continue to hold a licence – I say I have held a licence since the introduction of the Act in 1996 and at no time have I presented as a risk to any member of the public, and that my lifestyle in my more mature years obviates any future risk of any compromise of public safety. 37 Senior Constable Martignago gave evidence before the Tribunal on 17 March 2006. He told the Tribunal that when he attended Mr Mercer's house on 22 October 2002, he found Mr Mercer to be moderately affected by alcohol. He made this assessment on the basis of Mr Mercer's general appearance, his unsteadiness and the fact that he had bloodshot eyes. 38 In relation to the incident on 22 October 2002, Senior Constable Martignago confirmed that when he entered Mr Mercer's house, there was a loaded firearm at the door. Other firearms found in Mr Mercer's house were found to be registered. According to Senior Constable Martignago, when he attended Mr Mercer's house, it was on the basis of information provided to him that Mr Mercer had claimed that he had been threatened and that he would 'shoot anyone that comes to my house.' 39 A statement by Senior Constable Martignago dated 13 January 2006 was accepted into evidence. In his statement, Senior Constable Martignago described an alleged encounter with Mr Mercer on 12 December 2004 as follows: At about 5.15pm on Sunday the 12th of December 2004, I attended the carpark of the St Marys Club on the Great Western Highway at St Marys. I was off duty with my wife and chid…I parked my vehicle in a parking bay and was proceeding to remove a pram from the rear of the vehicle when I saw Adam Mercer walk towards my vehicle…He was approximately 2 to 3 metres away from me. I saw him look at me and I saw him point towards me and he said in a loud voice,' Just one prank call and everything will be alright.' I immediately believed that Adam Mercer made this comment towards me in regards to previous dealings I have had with him as a police officer. I also felt apprehensive for the safety of my wife and child. 40 Mr Mercer gave oral evidence before the Tribunal as a means of anticipating the evidence that had been given in confidence and from which he had been excluded. He confirmed that he had been in a de facto relationship with Ms Pamela Allen, whose stepfather was a police officer at St Marys Police Station. When Ms Allen's stepfather became aware of Mr Mercer's situation in relation to his firearms licence and his problems with St Marys Police, he made it clear to Mr Mercer that he didn't want to have anything to do with him. He also instructed his daughter to break off the relationship with Mr Mercer because of the matter before the Tribunal. According to Mr Mercer, 'his attitude changed from curiosity to pure hatred.' 41 According to Mr Mercer, Ms Allen's stepfather would tell his daughter that Mr Mercer was under investigation for murder and that he was a paedophile. This, according to Mr Mercer, destroyed his relationship with Ms Allen and one day, when he returned from work, Ms Allen had moved out. 42 According to Mr Mercer, he and Ms Allen met to try to salvage the relationship without her stepfather knowing. A couple of days later, three officers came to Mr Mercer's house accusing him of threatening a police officer that he would kill his family and burn the house down. Mr Mercer told the Tribunal that he would have to be an idiot to make such a threat given that the matter was still before the Tribunal. Mr Mercer told the Tribunal that he had never threatened anybody and that he had never threatened a police officer at all. 43 Mr Mercer told the Tribunal that he was a fit and proper person to hold a firearms licence and that he had been very careful in his behaviour and that he wouldn't do anything to jeopardise having a firearms licence, which he sees as a privilege. 44 In cross-examination, Mr Mercer was unable to explain how in 1999 he came to have six unregistered firearms in his possession. 45 He confirmed that on 22 October 2002, he was at home with his son and that he had placed a rifle behind the front door before having a sip of full-strength beer. 46 In response to the question, do you recall what you said to the police when you rang up, Mr Mercer said: I said I'd had a verbal dispute with my ex. Her new husband threatened to shoot me if I didn't let her talk to my son. I had concerns for my safety – he was just out of gaol. The police said I should close the doors and windows. The police said they didn't know when someone would be able to come. I am a licensed firearms holder and I reserve the right to protect myself and my family. 47 In response to the question whether he would have shot at him had he been confronted by Mr Knight, Mr Mercer answered If he was shooting at me, I would do it. 48 In response to the question why Mr Mercer didn't get into his car and leave the house if he was in fear of Mr Knight coming to the house, Mr Mercer responded that he was simply following the police instructions to stay in the house and to lock the doors and close the windows. 49 Mr Mercer denied saying that he was going to shoot one of the constables at St Marys Police Station because she wouldn't give him an answer about the firearms which had been confiscated by the police. Confidential evidence Subject to suppression order 50 Subject to suppression order 51 Subject to suppression order 52 Subject to suppression order 53 Subject to suppression order 54 Subject to suppression order 55 Subject to suppression order 56 Subject to suppression order 57 Subject to suppression order 58 Subject to suppression order 59 Subject to suppression order 60 Subject to suppression order 61 Subject to suppression order 62 Subject to suppression order 63 Subject to suppression order 64 Subject to suppression order 65 Subject to suppression order 66 Subject to suppression order 67 Subject to suppression order Subject to suppression order 68 Subject to suppression order 69 Subject to suppression order 70 Subject to suppression order 71 Subject to suppression order 72 Subject to suppression order 73 Subject to suppression order Decision and Reasons 74 In determining whether the Commissioner has made the correct and preferable decision, the Tribunal must take into account all the relevant considerations. In my view, the relevant considerations are as follows: 75 Section 24(2)(b)(ii) of the Firearms Act provides that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any provision of the Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention. 76 The contravention relied upon by the internal reviewer was a charge of Handle/Use firearms under the influence of alcohol/drug and holder of category A or B licence not have approved storage. The charge of not having approved storage was withdrawn for lack of proper pleading, in that the information was drafted in such a way that it didn't show an offence known to the law. The charge of handle/use firearms under the influence of alcohol was dismissed as the court was not satisfied that a prima facie case had been made out. 77 As Mr Mercer was charged, on one hand, on the basis of an information that was drafted in such as way as to not show an offence known to the law, I find that s24(2)(b)(ii) is not invoked in this case as no evidence was put forward that Mr Mercer had contravened any provision of the Act or the Regulations in this regard. 78 As there was no prima facie case made out in relation to the charge of handle/use firearms under the use of alcohol, the Tribunal finds that there is no evidence of a contravention of any provision of the Act or Regulations on the basis of these facts. Accordingly, the Tribunal finds that s 24(2)(b)(ii) of the Act is not invoked in these circumstances. Public interest 79 The Commissioner's decision to revoke Mr Mercer's licence relied on the evidence in relation to the events that allegedly took place on 22 October 2002. 80 The decision to be made by the Tribunal is a de novo decision. In making my decision I have had regard not only to the material that was before the Commissioner, but also to further material put to me in relation to events occurring following the initial decision to revoke Mr Mercer's licence. 81 Part of this material was put to me in the absence of Mr Mercer and his legal representatives. I accepted some of this material into evidence in accordance with the provisions of s 75(5) of the Firearms Act and s 75 of the ADT Act. 82 On the basis of the evidence before me and on the basis of my findings below, I have determined that it would not be in the public interest for Mr Mercer to continue to hold a firearms licence. 83 In relation to the events of 22 October 2002, I accept Mr Mercer's evidence that he received a threatening phone call from Ms Knight's de facto partner who, according to Mr Mercer, had just been released from prison. I accept Mr Mercer's evidence that he feared for his safety and for that of his son, who lives with Mr Mercer. I also accept that he remained in his house on police instructions. 84 I do, however, have concerns in relation to Mr Mercer's explanation to the Tribunal as to why he had a gun by the door following the threats made by Ms Knight's de facto partner. Mr Mercer told the Tribunal: The police said I should close the doors and windows. The police said they didn't know when someone would be able to come. I am a licensed firearms holder and I reserve the right to protect myself and my family. 85 There is no such right contained in the Firearms Act or the Firearms Regulation. Self-protection is not a reason for which a firearms licence can be granted and, by extension, for which a firearms licence should be used. 86 Section 12 of the Firearms Act specifically says that 'an applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for…personal protection or the protection of any other person.' 87 I accept that following the events of 22 October 2002, two charges were laid against Mr Mercer. One charge was withdrawn while the other was dismissed. 88 A determination on whether it would be in the public interest for Mr Mercer to continue to hold a firearms licence is not, however, contingent on the court result but rather on Mr Mercer's actions: Bazouni & Ors v Commissioner of Police [2002] NSWADT 100. 89 I am not satisfied that the evidence is such to allow me to find that Mr Mercer was intoxicated on 22 October 2007. Nor am I satisfied that the evidence is such to allow me to find that his firearms were not properly stored. Similarly, on the evidence before me, I cannot be satisfied that it was Mr Mercer who rang St Marys Police Station to threaten that he would shoot anyone who came into his house. 90 However, my decision is to be made on the basis of all information before me and not only on the basis of the material before the original decision maker. 91 I accept the evidence of Senior Constable Martignago that Mr Mercer approached him and his family on 12 December 2004 and said to him, 'Just one prank call and everything will be alright.' Although it was an inappropriate remark to make, on the evidence before me, I am not satisfied that it constituted a threat to Senior Constable Martignago. 92 I have considered the fact that Jodie Knight lodged an application for an AVO against Mr Mercer. In view of the fact that Ms Knight did not, however, attend court in support of the application and that the application was dismissed, I have given it little weight. 93 Using the provisions contained in s 75(5) of the Firearms Act and s 75 of the ADT Act, I allowed (Subject to suppression order) evidence in the absence of Mr Mercer and his legal representatives. I have accorded less weight to this material than I would have given to it had Mr Mercer and his representatives been in a position to cross-examine on the evidence or to submit material in reply. 94 Subject to suppression order 95 Subject to suppression order 96 Subject to suppression order 97 Subject to suppression order 98 Subject to suppression order 99 Subject to suppression order 100 In light of the evidence before me, and in particular the evidence that has been provided to the Tribunal in confidence (Subject to suppression order), I have reached the conclusion that it would not be in the public interest for Mr Mercer to continue to hold a firearms licence. 101 I accept that Mr Mercer will be disappointed by this result, particularly in light of the circumstances under which his suitability to hold a firearms licence was first called into question. I also accept the fact that much of the evidence upon which I have based my decision has been received in confidence and has therefore not been made available to Mr Mercer or to his legal representatives. 102 However, in the case of firearms, the overriding principle is the safety of the public and it is with this in mind that I have reached my decision that it would not be in the public interest for Mr Mercer to continue to hold a firearms licence. Fit and proper person 103 As I have determined that it would not be in the public interest to set aside the revocation of Mr Mercer's licence, it is not necessary for me to consider whether Mr Mercer is a fit and proper person to hold a firearms licence. Order The decision of the Commissioner to revoke the applicant's firearms licence is affirmed.