Foote v Commissioner of Police, New South Wales Police [2006] NSWADT 8

CITATION: Foote v Commissioner of Police, New South Wales Police [2006] NSWADT 8

DIVISION: General Division

APPLICANT PARTIES: Nigel William Foote RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 053220

HEARING DATES: 08/09/05, 07/10/05

SUBMISSIONS CLOSED: 10/07/2005

DATE OF DECISION: 01/09/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit

MATTER FOR DECISION: Principal matter

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

CASES CITED: Ward v Commissioner of Police [2000] NSWADT 28

APPLICANT In person REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: 1. The decision under review is set aside; 2. The matter is remitted for reconsideration by the Commissioner with the recommendation that the licences be granted if Mr Foote satisfies all the other requirements for the licences.

REASONS FOR DECISION 1 Mr Foote held a Category ABH firearms licence under the Firearms Act 1996 ("the Act"). His licence expired in September 2004 and he applied for a new licence. This application was refused. The refusal was affirmed at the Internal Review stage. Mr Foote has applied to this Tribunal for review of the decision to refuse his licence application. Background 2 The sport of shooting is a very big part of Mr Foote's life. He has a spinal injury that restricts him from nearly all sports however he finds shooting to be manageable and has participated regularly in gun club competitions. He has been involved in the sport for most of his life and he has held a Minor's Firearms Permit, a Junior Pistol Target Shooter permit and a Category ABH firearms licence. 3 The history of Mr Foote's dealings with police and the interactions between him and his family is a sorry one. It involves numerous complaints to police by Mr Foote about family members and about police officers as well as complaints by various members of Mr Foote's family about him. The reports to Police contain numerous allegations of threats and violence. There have been two Interim Apprehended Violence Orders issued against Mr Foote, however, neither of these became full AVOs. 4 In June 2004 Mr Foote appeared in Newcastle Local Court on the charge of 'Possess prohibited drug'. The Magistrate found the charge proven but determined to proceed without recording a conviction, pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. 5 Commissioner's delegate determined to refuse Mr Foote's application having reached the conclusion that Mr Foote is not a fit and proper person to hold a firearms licence. Applicable legislation 6 Section 11(3)(a) of the Act requires that the Commissioner must not issue a licence unless the Commissioner is satisfied that the applicant is a fit and proper person to be issued a licence and can be trusted to have possession of firearms without danger to public safety or to the peace. 7 Section 11(5)(b) of the Act states that a licence must not be issued to a person who 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. 8 Section 12 of the Act states that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. Where the genuine reason is sport/target shooting, the applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought. 9 Clause 5(b) of the Firearms (General) Regulation 1997 ("the Regulations") determines that an offence relating to prohibited plant or drugs is a prescribed offence for the purposes of the Act. 10 Section 29(4) of the Act provides the Commissioner may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest. The Commissioner's case 11 The Commissioner relies on the material contain in the brief tendered in evidence and the reasoning provided in relation to the Internal Review determination. In particular the Commissioner points to the long history of violence and threats of violence within Mr Foote's family, his proven possession of heroin and the poor relationship between Mr Foote and police. 12 Mr Pisani submits that, on examination of all available information, the Tribunal must be satisfied that it is not against the public interest for Mr Foote to hold a licence. He contends that if there is information available which gives rise to any doubts, these concerns must be taken at their highest value. For this reason the Tribunal should give careful consideration to the complaints to Police from Mr Foote's family members, reporting his conduct, particularly relating to drugs. 13 In December 2001, Mr Foote's father alleged to Police that Mr Foote had violently assaulted and threatened to kill him earlier in the day, and he expressed grave fears for his safety and that of his family. Mr Foote's father indicated his belief that Mr Foote was becoming increasingly paranoid due to the effects of regular cannabis use. He also stated his belief that Mr Foote was mentally unstable, with his behaviour causing family members to feel apprehensive about their general safety. 14 In 2002 several reports were made to Police regarding allegations of violence and/or harassment between Mr Foote's family members. In March 2002 Mr Foote reported to Police that his brother had kicked him in the head and attempted to murder him by stabbing him. In June 2002 Mr Foote reported to Police that his mother and sister had physically pushed him around and that his mother threatened to hit him and to kill him. Mr Foote and his brother each made allegations of assault against the other. Mr Foote's brother also claimed that Mr Foote was cultivating cannabis plants in the shed at his residence. He further alleged that Mr Foote attacked him with a baseball bat because he had ripped out the cannabis plants, which he broke and damaged. 15 On the other hand, Mr Foote alleged that his brother had smashed up his possessions, and that it was his brother who repeatedly assaulted Mr Foote whilst he made no attempt to fight retaliate. 16 The saga continued throughout 2002. In August 2002 Mr Foote's father reported to Police that Mr Foote had verbally abused him for about three hours. Mr Foote reported to Police that his mother had stabbed him with a kitchen knife. In December 2002 Mr Foote reported to Police that his mother and father were harassing him. He asserted that his father was doing this in order to have Mr Foote's registered firearms removed from him. Police were concerned that Mr Foote appeared to be suffering from some sort of mental illness, which raised questions as to his suitability to hold a firearms licence. 17 In December 2003 Mr Foote's sister reported to Police that Mr Foote had been a heroin addict for the previous five years. She expressed fears for her safety and made allegations that Mr Foote had previously threatened to have her raped and murdered, and to stab her with an HIV infected needle. An Interim AVO was granted as a result and Mr Foote's firearms were confiscated. This complaint was subsequently withdrawn. In May 2004 Mr Foote reported to Police that his life was in imminent danger from his sister. 18 On the basis of this history, the Commissioner holds concerns regarding Mr Foote's mental state. Mr Pisani argues that the Tribunal could not be satisfied that Mr Foote is a fit and proper person to be issued a firearms licence. He submits that under these circumstances it is not possible to eliminate the possibility of risk to public safety should Mr Foote's application be granted and that he is permitted to continue holding a firearms licence. In this regard he referred to the decision in Ward v Commissioner of Police [2000] NSWADT 28 where the Tribunal's Deputy President stated at paragraph 28: "The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk." 19 Mr Pisani argues that the Tribunal could not be so satisfied and therefore the decision should be affirmed. Mr Foote's case 20 Mr Foote does not dispute the incidents to which the Commissioner refers but he contends that at all times he was the innocent party. He does not concede any of the allegations made against him by his family members and contends that he has never threatened anyone, family or friends, with a firearm or any other weapon or in any other way. He says that he lives with and cares for his grandparents and that he does not live with his parents and sister because his father and sister have caused him to have too many problems. 21 He says that his father is an alcoholic Vietnam War veteran, who is intoxicated and violent on a daily basis. Mr Foote also says that his father dislikes firearms as a consequence of his war experiences. He says that his father has deliberately complained to police with the intention that Mr Foote would lose his firearms. 22 Mr Foote says that his complaints to police were out of frustration with his father's behaviour. He says that rather than investigating his complaints, police had formed the view that he may have been suffering from some form of mental condition. In order to address these concerns Mr Foote consulted a psychiatrist and obtained a report that clearly indicated that Mr Foote had no history of any psychiatric problem, was not taking any medication and was not suffering from any psychological condition. 23 Notwithstanding that report, it is apparent from the reasons provided in relation to the internal review decision that police remained of the view that Mr Foote may have been suffering from some form of mental condition. 24 Mr Foote says that the incident involving his sister arose from a complaint by her on New Years Eve 2003. He says it was a deliberate attempt by her to ruin his New Years Eve and to cause him problems so that he would lose his guns. He says that as a result of her complaint he spent New Years Eve at the police station trying to explain that nothing had happened at all and that his sister had made up a story. 25 Mr Foote says that he was charged with heroin possession after he had given a lift to two boys he had met at the local shopping centre. He says he only knew them for a short time and that he did not know at the time that they were known to the police for drug offences. He was driving his grandmother's car and it had a broken tail light. Police saw the broken tail light and stopped him. The police searched the passengers but allowed them to leave the scene. However, Mr Foote was charged with possessing a small amount of the prohibited drug. He maintained that they were not his drugs. He says that he does not take drugs and any contrary advice that his family members have given to the police is not true. 26 Mr Foote provided two medical reports from Dr David Outridge that certify that at the time of the consultation Mr Foote was not taking any illicit substances. Dr Outridge's report states that his opinion is based on both clinical knowledge of Mr Foote and a current Urine Drug Screen. Findings 27 The facts of this matter tell a sad tale of a clearly dysfunctional family with continual domestic disputes. It seems that Police became impatient with Mr Foote and his family and they also developed concerns regarding the truthfulness of Mr Foote's allegations. In the circumstances this is understandable. It is regrettable that Mr Foote's allegations were not investigated although in the circumstances this is also understandable. A simple investigation might have resolved some of their concerns. For example, the issue of whether Mr Foote was cultivating cannabis plants in the shed at his residence would have been easily resolved by inspecting the shed. 28 The substance of the Commissioner's case is that Mr Foote is not a fit and proper person to be issued a firearms licence and that it is not possible to eliminate the possibility of risk to public safety should Mr Foote's application be granted. 29 Mr Foote appeared and gave evidence before the Tribunal. He also provided character references in support of his assertion that he is a person of good repute and a fit and proper person to be issued a firearms licence. 30 Also in support of his application, Mr Foote provided statutory declarations from his mother and brother, indicating that there are no problems in the relationship between Mr Foote and the other members of his family. That evidence is in direct contradiction to the Commissioner's material. Neither Mr Foote's mother nor his brother was available for cross-examination. In the circumstances I am not prepared to give any weight to those statutory declarations. 31 I note the finding of guilt in relation to Mr Foote's possession of heroin but I also accept Mr Foote's contrition in relation to that incident. In my view, this should not prevent him from holding a firearms licence. 32 I find that the Commissioner's evidence supports the view that there was continual domestic dispute between Mr Foote and the various members of his family at least until May 2004. It is probable that these disputes sometimes involved physical violence, however on the evidence before me I am unable to conclude whether or not Mr Foote was responsible for the violence. I note that his evidence on that point is not contradicted. The evidence is that Mr Foote has adopted a responsible attitude to his family relationships, having disassociated himself from that domestic situation, and is completing TAFE studies with view to a career in the real estate industry. 33 I agree with Mr Pisani's submission in regard to the views expressed in Ward v Commissioner of Police and the approach to be taken by the Tribunal. However, despite the strong evidence of the domestic disputes, there is no evidence to suggest that Mr Foote does not have a responsible attitude to the use of firearms. In the circumstances it is my view that the public can have confidence in this continuing and that there is virtually no risk to public safety should Mr Foote's application be granted. 34 In my view, the licences sought should be granted if all other preconditions for the issue of the licences are met. In order for Mr Foote to be granted a licence for sport/target shooting it is necessary that he be a current member of a shooting club approved by the Commissioner in accordance with the Regulations. I am unaware whether this is the case and accordingly it is appropriate that Mr Foote provide the Commissioner with evidence that he satisfies this requirement before the licence is issued. Order 1. The decision under review is set aside 2. The matter is remitted for reconsideration by the Commissioner with the recommendation that the licence be granted if Mr Foote satisfies all the other requirements for the licence.