Morris -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 223

CITATION: Morris -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 223 DIVISION: General Division APPLICANT PARTIES: Barry Michael Morris RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023166 HEARING DATES: 28/10/2002 SUBMISSIONS CLOSED: 10/28/2002 DATE OF DECISION: 11/06/2002

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: O'Sullivan v. Farrer (1989) 168 CLR 210 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 APPLICANT REPRESENTATION: J Taylor, solicitor RESPONDENT C Capper, advocate ORDERS: 1. The Commissioner decision to revoke the applicant's licence is affirmed.

Introduction 1 On 29 May 2002 the Commissioner of Police (the Commissioner) revoked Mr Morris' Category AC firearms licence which enabled him to engage in recreational hunting and vermin control. On 1 August 2002 Mr Morris applied to the Tribunal for a review of that decision. 2 The revocation decision followed Mr Morris' appearance in the Local Court on 3 October 2001 when he was convicted or found guilty of several offences including firearms offences. The background to these offences is that there was an altercation between Mr Morris and his wife after which police attended the property. Police visited the property again a few days later and charged Mr Morris with the storage and unregistered firearms offences. 3 The Tribunal has jurisdiction to hear this matter under s 75 of the Firearms Act 1996 (the Firearms Act) and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Grounds for revocation 4 The Commissioner relied on three grounds to revoke Mr Morris' licence. The first ground was that the Commissioner would be required to refuse him a licence if he was applying for one. The second ground was that Mr Morris is no longer a fit and proper person to hold a licence and the third ground is that it is not in the public interest for Mr Morris to continue to hold a licence. The legislative provisions prescribing these grounds are set out below. Legislative provisions 5 The Firearms Act sets up a scheme for licensing people to possess and use firearms. Section 24(2) sets out some of the grounds on which the Commissioner may revoke a licence. 1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (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: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence , or (d) for any other reason prescribed by the regulations. (Emphasis added.) 6 Two of the reasons the Commissioner is required to refuse a licence are set out in s 11(5)(b) and s 11(5)(d): A licence must not be issued to a person who: (b) 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, whether or not the offence is an offence under New South Wales law, or (d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere) 7 For the purposes of s 11(5)(b), the s 5 of the Firearms (General) Regulation 1997 (the Regulation) prescribes the following offences: An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). 8 Finally, under s 24(2)(d) a licence may be revoked for any other reason prescribed by the regulations. Clause 17 of the Regulation states that: In accordance with section 24(2)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it. (Emphasis added.) 9 Part 4 of the Firearms Act provides for the safekeeping of firearms. The general requirements are set out in s 39 which relevantly provides that a person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. 10 Under s 40(1) of the Firearms Act: The holder of a category A licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried , it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, Issues 11 The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in revoking Mr Morris's firearms licences on any or all of the above grounds. Evidence 12 On 3 October 2001, the Local Court made the following determinations: * Re five counts of not keep firearm safely, Mr Morris was dealt with under s 10 of the Crimes (Sentencing Procedure) Act and given a 12 month bond; * Re two counts of possess unregistered firearm, Mr Morris was convicted and fined $200 in relation to each matter; * Re assault occasioning actual bodily harm, the charge was dismissed; and * Re resist officer in execution of duty, the charge was dismissed on appeal.