LY v Commissioner of Police, NSW Police [2004] NSWADT 115

CITATION: LY v Commissioner of Police, NSW Police [2004] NSWADT 115 DIVISION: General Division APPLICANT PARTIES: LY RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 033249 HEARING DATES: 11/02/2004 SUBMISSIONS CLOSED: 02/11/2004 DATE OF DECISION: 06/09/2004

BEFORE: Higgins S - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT M Buchanan, solicitor ORDERS: The Commissioner's decision is affirmed

REASONS FOR DECISION BACKGROUND 1 This is an application by LY seeking review of the decision of a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to revoke her category AB firearms licence. The grounds relied on by the Commissioner to revoke her licence was that he had "reasonable cause to believe" that she "may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances". 2 The circumstances on which the Commissioner based his belief were the circumstances surrounding the conviction of LY's husband, Mr LY, on 3 April 2003 for two assault offences. The offences were committed between 1 January 1983 and 18 November 1984 and related to assaults committed by Mr LY, on LY's daughter from a previous marriage. As a result of these convictions, the Commissioner, as he was required to do, revoked Mr LY's firearms licence. 3 The Tribunal has jurisdiction to hear LY's application by virtue of s.75(1)(c) of the Firearms Act, 1996 and s.38 of the Administrative Decisions Tribunal Act 1997. LEGISLATION 4 The Firearms Act, 1996 ("the Act") makes provision for the regulation, control and registration of firearms. The principles and objects of that Act are set out in s.3. Sub-section 3(1) of that Act provides: " 3(1) The underlying principles of this Act are: (a) to confirm firearms possession 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 control upon the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (iii) to facilitate a national approach to the control of firearms". 5 Section 10 to 18 of the Act relates to the issue of a firearms licence. Section 11 sets out some general restrictions on the issue of a firearms licence. In so far as it is relevant to this application, that section provides as follows: "s11(4) Without limiting the generality of sub-section (3)(a), a licence must not be issued if the Commissioner has reason or 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)… (5) A licence must not be issued to a person who: (a)… (b) has, within the period of ten 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…". (emphasis added) 6 In respect of sub-section 11(5)(b) of the Act, clause 5 of the Firearms (General) Regulation, 1997 prescribed certain offences for the purposes of that sub section. Included in the prescribed offences is an offence involving an assault. 7 Section 24 of the Act sets out the circumstances in which a firearms licence may be revoked. In so far as it is relevant that section provides: "s.24(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…". EVIDENCE 8 The Commissioner, relied on the material contained in the brief of evidence that had been filed and served on 5 November 2003. That material contained the following documents: - LY's firearms licence history. - Mr LY's criminal history. - Statement of S, dated 7 March 2001. - Statement of T, dated 10 June 2002. - Report of Detective Sergeant W, dated 25 May 2003. - Notice of revocation and statement of reasons, dated 11 June 2003. - Internal review request, dated 6 July 2003. - Internal review and statement of reasons, dated 12 August 2003. - LY's application to the Tribunal filed on, 10 September 2003. 9 The Commissioner also relied on the material that was filed and served on 26 November 2003. That material contained the following documents: - Diary entries of T. - Department of Health report form, dated 2 February 1984, 6 April 1984, 18 December 1984, 19 December 1984, 4 January 1985 and 14 January 1985. - Report of Dr E.L. Roberts, dated 18 November 1984. - Report of Dr M.M. Ahmed, dated 18 November 1984. - Child at Risk Notification in respect of S and T, dated 17 December 1984. - Transcript of the Judge Knight dated 8 May 2003 concerning the sentencing of Mr LY. 10 LY relied on material that she had filed and served on 14 November 2003, 26 November 2003 and 18 December 2003. She also gave sworn oral testimony and was cross examined. 11 The material filed by LY contained her responses to the statements and allegations contained in the Commissioner's brief of evidence. It also contained two letters of support from Mr and Mrs LY's daughter, J, and three other people who attest to Mr LY being an honest person. The material filed on 26 November 2003, included a report by Jean Munsey, welfare officer, dated 23 July 1984. It would appear that this report was prepared for the purposes of Family Court proceedings relating to the custody of LY's children from her first marriage. These children being S and T. Offences for which Mr LY was convicted 12 It is not disputed that Mr and Mrs LY commenced a defacto relationship some time in 1981 or 1982. At the time LY had been separated from her then husband, Mr K, for a short period of time. Following the breakdown of her first marriage, LY's children, who were aged about 6 and 4, resided for a very short time with a relative in Sydney. They then went back to live with Mr and Mrs LY, who were not married at that time. Also residing with them were Mr LY's two children from his previous marriage. These children were C, aged about 11, and D, aged about 8. 13 Mrs and Mrs LY subsequently had two children of their own. The first was J who was born in 1982/83 and the second was W who was born some time after 1984. At some stage, Mr and Mrs LY were married. 14 There is no dispute that the break up of LY's first marriage was very acrimonious. While Mr and Mrs LY initially lived in a small country town they soon moved onto a small property, where they continue to live today ("the property"). 15 As mentioned above, the offences for which Mr LY was convicted relate to two events that occurred during 1983 and 1984. They both occurred at the property. However, it was not until 7 February 2002, that Mr LY was charged with the offences relating to these events. On 3 April 2003, a jury returned verdicts of guilty on two offences. The first offence was that between 1 January 1983 and 18 November 1984 he assaulted S and at the time he committed the assault he committed an act of indecency on S who was under the age of 26 years. The second offence was that between 1 November 1984 and 18 November 1984 he assaulted S and caused actual bodily harm. 16 On 8 May 2003, Mr LY was sentenced to two years imprisonment on each charge. This sentence was suspended under s.12 of the Crimes (Sentencing Procedure) Act 1999 on the condition that he enter into a two year good behaviour bond. 17 At the time the offences were committed, S was 8/9 years of age. 18 Mr LY defended both charges and has lodged an appeal, which was to be heard in May 2004. The Tribunal was informed that Mr LY was only appealing the finding of one charge; namely the charge of assaulting S and committing an act of indecency. He was also appealing the sentence that had been imposed in respect of this charge and the other assault charge. LY supports her husband in his appeal. 19 In his remarks on sentence, Judge Knight, stated that he was satisfied, beyond reasonable doubt, of the following facts in respect of the charge of assaulting and committing an act of indecency: "S was in the lounge room of a house at the R & R Ranch where she was living with you and her mother, her younger brother and two children of yours of a previous relationship. The family unit was thus comprised of two adults and four children at that time. As I have said, she said that you and she were in the lounge and you were standing in front of her. You grabbed her hand and pulled her towards you and said words to the effect, I have got something to show you again. You undid your zipper and pulled out your penis and grabbed her hand and made her hold your penis and start rubbing it up and down. Your penis was erect, she was made to do this for no more than five minutes and no less than one minute. You did not say anything to her at the time that you were compelling her to masturbate you but before she stopped you put your hand on the outside of her shorts where her vagina was and said "one day, this", indicting your penis, "will go there". 20 The second charge arose from acts by Mr LY after he heard J, who was a baby at the time, crying. His children and LY's children were with J, and in response to a question by Mr LY, as to why J was crying, one of the children said that they had not given her the balloon and that was why she was crying. Again in his remarks on sentence Judge Knight stated the following in respect of this incident: "You then went inside and came back outside on the verandah of the premises with a stock whip and said "Come over here you kids". The stock whip had a wooden handle and was made of platted leather. It was approximately two metres long and on the end was a frayed bit of string. S gave evidence that the children, that is herself, C, T and D went towards the house and went onto the verandah and that you told them to line up which they did near the edge of the verandah which varied in height above the ground from about 50 centimetres to a metre or a metre 20 centimetres. You had the stock whip curled around in one hand and you made the child D jump off the end of the verandah and when he was in the air you hit him with the whip between his bottom and his knees. He landed on the ground and you said "Come back up here". D did so and stood behind T and S on the verandah. You then told the child C to jump off and he did so. After C jumped off, he put his hand behind his back at the back of his legs and got whipped on the hand as well as his leg. He also fell to the ground and you told him to come around and he did so. T was then told to jump off and he was whipped in a similar fashion, and he was told to come around the back to the verandah which he did. S was then told to jump off the verandah and as she did so, you whipped her. She felt a whip on her bottom and down her legs. When she was whipped, she said it was excruciating and she screamed. She landed on the ground and was told to come back onto the verandah. When all four of the children were back on the verandah, her mother who was outside on the verandah grabbed her arm and said "Stop, stop it". You said "Shut up" and you then told each of the children to jump again which each of the four children did and each was hit a second time. Ssaid she was screaming, it was so painful and the others were snivelling. You then made the child D jump a third time and S's mother screamed louder "Stop it, stop it". After D was hit a third time you got a bit cranky with S's mother and took out your pocket knife and cut the whip up into pieces". 21 LY did not deny the whipping incident referred to above, nor had the whipping been denied by her husband at the trial. His principal defence was that the whipping was reasonable chastisement of the children at that particular time. LY gave similar evidence before the Tribunal. She stated that it was very stressful having five children, particularly where one of these, namely T, was a particularly difficult and mischievous child. She also stated that the account given by T and S in their statements exaggerated what had in fact occurred. 22 The severity of the whipping incident as stated by T and S is supported by a Department of Health report, dated 14 January 1985, together with the reports of Dr Roberts and Dr Ahmed, dated 18 November 1984. From the contents of the Department of Health report, it would appear that Mr and Mrs LY were spoken to about the severity of the punishment they gave to the children. They were also warned that this type of punishment went well beyond what was acceptable disciplinary action. 23 In respect of the other assault charge, LY was emphatic that this did not occur. She submitted that the evidence given by her daughter, S, was a fabrication and that she could not be believed. Other evidence relied on by the Commissioner 24 As mentioned, above the Commissioner relied on the statements of S and T together with drawings made by T during the relevant years. Included in the statements are incidents, other than those for which Mr LY was convicted, where Mr LY is alleged to have severely disciplined the children or acted inappropriately towards them. 25 Otherwise the contents of the statements and the drawings paint a picture of a life lived in fear of an authoritarian figure, Mr LY. In summary they allege the following: - Mr LY was often drunk. When he was drunk he swore and was often angry. When he was angry he yelled and he would belt the children with the chord of the electric jug which left welt marks on the children; - Mr LY often criticised and belittled S and T. On two occasions he chased T threatening him with an opened pocket knife, the blade of which he had heated up. On another occasion he dunked T, head first, into a water tank. Despite LY's request to stop doing it he continued to hold T under water. T went to live with his father shortly thereafter, and never came back to live with Mr and Mrs LY; - S feared Mr LY – she gives several examples as to the basis of that fear, e.g. refusal to break a car journey so that the children could go to the toilet, whipping, threatening T with an opened pocket knife, destroying her bicycle that her father had reassembled for her from a bike frame he had found on the rubbish tip. S went to live with her father about one year after T had left. She subsequently, visited LY when Mr LY was not present. 26 As mentioned above, LY denied the allegations and any suggestion that Mr LY was overbearing and authoritative towards her. She challenged every aspect of what was contained in the statements of her children and relied on a report, dated 23 July 1984, of Jean Mounsey, Welfare Officer. In particular she relied on the statements in that report, which indicated, that from that officer's observations, S was more relaxed when she was with her mother than she was at her father's place. 27 In regard to the events that occurred during 1983 and 1984, the Commissioner also relied on a report, dated 25 May 2003, of Detective Sergeant W of B Police. That report stated the following: "The evidence of S and T and the extensive evidence of the Court matter revealed that Mr LY exercises complete authority and control over LY, as well as the other members of the household, and there will be little that she can do to prevent him having access to firearms if they are available in the house… ….there is little doubt in my view that the actions of LY in obtaining a licence and transferring registration of the firearms into her name, is for the sole purpose of ensuring that Mr LY has ongoing access to his firearms… I could not be satisfied that LY has the capacity to prevent her husband from unlawfully accessing firearms in the house, and in my view the possibility of Mr LY having access to firearms is an unacceptably high risk". LY's firearms licence history 28 LY acknowledged that her husband had used firearms all of his adult life and that up until such time as his licence was revoked he was always the holder of the requisite firearms licence or permit. She stated that when they started going out together, she would accompany her husband when he went shooting. She stopped doing this when J was born. However, Mr LY continued to shoot on the property, on his own. 29 Some time after February 2002, Mr LY's firearms licence was suspended after the charges were laid against him for the abovementioned offences. Following an application by Mr LY, the Commissioner issued him with a permit to allow him to posses and use his 22 firearm for vermin control and other farming purposes. That permit, together with his licence, were revoked by the Commissioner after his conviction for the abovementioned offences, in April 2003. 30 LY applied for a firearms licence in October 2002. During cross examination, LY acknowledged that she had applied for the licence just in case her husband lost his licence. She denied that she had done this in order for her husband to be able to continue to use his firearms. She stated that the reason she obtained a licence was so that she could undertake the necessary vermin control on the property as well as kill any sick or disabled stock. 31 On 5 February 2003, LY was issued with her firearms licence. That licence was revoked on 5 July 2003. Accordingly, there was a period of about four months where LY was the holder of a firearms licence when her husband no longer had his licence. She acknowledged that since being issued with a licence she had not had any cause to use the firearm. She also stated that the keys to the firearms safe, which is the same safe used by her husband, were at all times kept in her custody and if she were to be again issued with her licence she would continue to retain custody of them. 32 LY stated that she and Mr LY resided on the property together with Mr LY's son, C and their son, W. C is now 33 years of age and lives in the same house as they do. W is now 19 years of age and lives in a separate granny flat on the property. W has been the holder of a firearm licence since he was 18 years of age and prior to this he was the holder of a minor permit. W has two firearms registered in his name and these are stored in his granny flat. W has the keys to his storage safe and he uses his firearms for vermin control on the property. He has also done this since Mr LY's licence was revoked. However, LY stated that relying on her son was not necessarily convenient as he worked irregular hours as a contract cleaner and was not always available. 33 LY stated that her husband has never been violent towards her. She acknowledged he gets angry, but she believes that they always resolve their differences one way or another, because he does listen to her. She stated that her husband has not drunk since 1986, due to high blood pressure, although he does have a drink at Christmas time. She went on to acknowledge that shooting was Mr LY's whole life and that he would love to continue to do it. 34 During cross examination, LY denied that there was a possibility for conflict between her and her husband if she were to have her licence restored. She accepted that when it came to using a firearm she would not be alone, and that she would be accompanied by her husband. She also acknowledged that she did not have the same level of experience in shooting moving targets such as vermin. However, she did not accept that this meant that she would give the firearm to her husband, or that he would take it from her if she was hesitant or where she had misfired the firearm. 35 LY also acknowledged in cross examination that she and her husband had not given any consideration to any other forms of vermin eradication as she and her husband did not believe in these alternative forms. SUBMISSIONS 36 The Commissioner submitted that the evidence, accepted by the Court in respect of the offences for which Mr LY was convicted, indicated that Mr LY was a man who used extreme disciplinary measures. Furthermore, those disciplinary measures, were found to be unacceptable. At the same time, LY considered that they were a legitimate form of discipline, and she continues to do so. It was submitted that when regard is had to the nature of Mr LY's behaviour in respect of discipline and otherwise, the fact that the LY's property is relatively isolated, the fact that Mr LY has a long standing passion for shooting and the fact that LY has not used a firearm since the early 1980's placed her at great risk. Furthermore, the only reason LY sought a licence was because her husband was at risk of losing his. As the primary objective of the Act is public safety, the evidence when viewed in light of this objective, gave rise to a reasonable cause to believe that LY's domestic circumstances were such that it could not "guaranteed" that she would personally exercise continuous and responsible control over the firearms at their property. 37 LY submitted that she had lived with her husband for 25 years, he had never been violent towards her and that he respected her independence. She submitted that the events that occurred 20 years ago did not disclose any animosity between herself and her husband. She acknowledged that they argued but that they had always worked together and that they would continue to do so. REASONS AND DECISION 38 The role of the Tribunal in hearing this application is to determine whether the Commissioner's decision is the correct and preferred decision having regard to the relevant facts and the applicable law (s.63 of the Administrative Decisions Tribunal Act 1997). 39 These are not adversarial proceedings where LY carries an onus of proof. It is a review of the merits of the original decision of the Commissioner to revoke LY's firearms licence. The Tribunal's task is to make its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (see McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. 40 The Commissioner's power to revoke a firearms licence pursuant to s.24(2)(a) of the Act is discretionary where he is satisfied of the matters referred to in paragraph (a). This means that first and foremost the Commissioner must have "reasonable cause to believe" that LY may not personally exercise continuous and responsible control" over her firearms "because of her way of living or domestic circumstances". The Commissioner argues that he was so satisfied and contends that the Tribunal should also be. 41 The term "reasonable cause to believe" has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated: "[10] There is no dispute as to the nature of the task that arises under r6(a). The words, 'where there is reasonable cause to believe that the application has or may have the right to obtain relief' are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief". 42 In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term "no reasonable cause to believe" as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated: "It is true that the notion of 'reasonable cause', although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments." 43 In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY's domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm. 44 I have emphasised the word "may" as this is the word used in the relevant paragraph of the Act. In my opinion, the threshold of satisfaction is lower than that considered in Taylor's case, where the relevant provision in the Worker's Compensation Act 1987 (NSW) contained the word "would". That Parliament intended a lower threshold be applied is understandable, having regard to the principles and objectives of the Firearms Act, which is that public safety is paramount. 45 In my opinion, before any finding is made as to the requisite "reasonable cause to believe", findings must be made about LY's domestic circumstances. 46 LY is correct when she states that there is no evidence of actual violence towards her by her husband. Indeed her evidence was that they had a long term and very supportive relationship. At the same time, she acknowledges that the firearm she will use, if her licence is restored, is that of her husband who has had a long term passion for shooting and will seek to have his licence restored as soon as possible, that the firearm will be stored in the same safe (with her having access to the key exclusively), and that her husband will accompany her when she uses the firearm. 47 The statements of LY's children, S and T, paint a very different picture of Mr and Mrs LY's relationship. Mr LY, they state, was very domineering and took extreme measures in disciplining the children – measures that LY was not able to control. They both feared Mr LY and continued to do so after they ceased living at the property. 48 However, the events spoken about by S and T occurred almost 20 years ago, and S and T have not experienced their mother's relationship with Mr LY since then. 49 While S and T were not called to give evidence, the Tribunal accepts their evidence to the extent it was accepted by the Court at the criminal trial of Mr LY. In the case of the whipping, LY does not deny that it occurred – her contention, as mentioned above, was that her children exaggerated it. 50 In her reference, J stated the following: "I would like to say that I have never known my father Mr LY to have power and authority over my mother as she is a very independent person." 51 In her evidence, LY stated that J had left home at the age of 14 but had lived with her parents for about 6 months last year. In what way J sees her mother's independence is not explained. 52 The other references filed by LY each state that Mr LY, in the opinion of the authors, was an honest and trustworthy person. In his reference, Mr K, a neighbour of Mr and Mrs LY, stated: "For many years, I met Mr LY and LY at least twice a day when we used to drive or children to and from school and school bus stop. Both my 2 daughters, J 38 and K18, used to refer to the LY as 'The Siamese Twins' because in all those years we never seen either of them without the other" 53 This description by Mr K is consistent with the way in which LY described the relationship between her and her husband. 54 From all the material before the Tribunal I find that LY's domestic situation is such that she is very supportive of her husband and has always been. She has supported him in his interests and agrees with him in regard to what is appropriate disciplinary action. I also find that, even though there is evidence of Mr LY overbearing LY over 20 years ago, there is no evidence that this has continued. In this regard, I accept the evidence of LY. 55 On the whole, the Tribunal found LY to be a forthright and truthful witness, and it is on her evidence that I find that her domestic circumstances are such that she may not personally exercise continuous and responsible use over the firearm. 56 Mr and Mrs LY live relatively isolated on their property. LY has not previously been the holder of a firearms licence and while she accompanied her husband when he went shooting many years ago, use and possession of firearms has not been an interest of hers. She only applied for a licence because her husband had his licence suspended with a possibility of it being cancelled. After her husband had his licence cancelled, LY did not use her firearm and she had readily admitted that if she was required to use it to control vermin she would take her husband with her. This is understandable, as he is the person with experience in shooting vermin. In these circumstances, particularly where LY is and has always been so supportive of her husband and has not independently developed any experience in using firearms, it is difficult to imagine that there will not be incidents where by necessity or even inadvertently LY will allow Mr LY to use and possess the firearm. As Mr LY is not the holder of a licence, such incidents would mean that LY will have failed to exercise continuous control over her firearm. 57 I do not accept the Commissioner's contention that LY's intention for applying for a firearms licence was so that her husband could continue to use and possess his firearm. In my opinion, based on the evidence of LY, this was not her intention. However, when objectively assessed for the reasons set out above, there is reasonable cause to believe that LY may not personally exercise continuous and responsible control over her firearms because of her domestic circumstances. 58 Having made this finding, the next issue is whether LY's licence should be revoked. As mentioned above, the power vested in paragraph 24(1)(a) of the Act is a discretionary power. Parliament has not set out how that discretion is to be exercised, but it is well established that it should be exercised in accordance with the principles and objectives of the Act. 59 As mentioned above, the principles and objectives of the Act are set out in s.3. The principle in s.3(1)(a) clearly states that the primary objective is public safety and that possession and use of a firearm is a privilege. The principle in s.3(1)(b) of the Act relates to improving public safety by imposing strict controls on the possession and use of firearms. 60 In my opinion, having regard to these principles, Parliament regarded any unlawful use and possession of a firearm to pose a risk to the public. 61 Accordingly, in my opinion, the Commissioner's decision was the correct and preferred decision. However, the reasons for such decision are not based on events that occurred 20 years ago in respect of Mr LY's conduct to LY's children, S and T. They are based on the nature of Mr and Mrs LY's relationship, as evidenced by Mrs LY and the circumstances in which she will use and possess the firearm. 62 The Tribunal orders that the Commissioner's decision is affirmed.