Nolan v Commissioner of Police, NSW Police [2007] NSWADT 173

CITATION: Nolan v Commissioner of Police, NSW Police [2007] NSWADT 173

DIVISION: General Division

APPLICANT PARTIES: Mark Nolan RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 073027

HEARING DATES: 27 April 2007

SUBMISSIONS CLOSED: 11 May 2007

DATE OF DECISION: 3 August 2007

BEFORE: Higgins 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

LEGISLATION CITED : Firearms Act 1996 Weapons Prohibitions Act 1998

Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 CASES CITED: Commissioner of Police v Toleafoa [1999] NSWADT AP 9 Hughes & Vale Pty Ltd v State of New South Wales [1995] 93 CLR 127

APPLICANT In person REPRESENTATION: RESPONDENT W Pisani, solicitor

ORDERS: The decision of the respondent is affirmed

REASONS FOR DECISION 1 This is an application by Mr Nolan ('the applicant') seeking review of a decision of the respondent Commissioner to refuse his application for a Category AB firearms licence pursuant to the Firearms Act 1996 ('the Firearms Act'). The grounds relied on by the respondent in refusing to issue the licence were those set out in s.11(3)(a) and (7) of the Act. These sections respectively provide as follows: (a) The respondent must not issue a licence unless he is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace: see s.11(3)(a) of the Firearms Act, and (b) The respondent may refuse to issue a licence if he considers that issue of the licence would be contrary to the public interest: see s.11(7) of the Firearms Act. 2 The conduct or facts relied on by the respondent in reaching this decision related to the circumstances surrounding incidents involving the applicant which included a finding of guilt in respect to the unlawful possession and storage of a firearm, alleged involvement in missing firearms, making a false statement to police, alleged act of physical violence, threats and intimidating behaviour, alleged belligerent behaviour towards authority and disregard for traffic laws. Relevant legislation Firearms Act 1996 3 In 1996 the NSW Government, as part of an Australia wide move to enact tough new gun laws in all jurisdictions, enacted the Firearms Act. The underlying principles of that Act are set out in s.3 and include a confirmation that firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety, to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage of firearms. 4 Part 2 of the Firearms Act deals with the issue of licences and permits to possess and use firearms. Part 3 deals with the registration of firearms. Part 4 deals with the safekeeping of firearms and Part 5 deals with firearms dealers' licences. The remaining parts of the Firearms Act deal with miscellaneous offences, firearms prohibition orders, applications to the tribunal and miscellaneous provisions. 5 S.7A(1) of the Firearms Act creates an offence where a person possesses or uses a firearm when that person is not authorised to do so by a license or permit issued under that Act. S.8 of the Act sets out those categories of firearms licences that the Commissioner is able to issue. This includes a category A and a category B licence. 6 S.11 of the Firearms Act sets out the general restrictions on the respondent issuing a licence in respect to an application for a licence that is made under s.10 of that Act. The only provisions relevant to this application are those mentioned in paragraph [1] above. 7 In addition to the general restrictions on issuing a firearms licence, s.12 of the Firearms Act provides that the respondent is not to issue a firearms licence which authorises the possession and use of a firearm unless he is satisfied that the applicant has a genuine reason for possessing or using the firearm of the type applied for. The section then goes on to set out what the genuine reasons are in respect to various types of firearms use. In this application the relevant genuine reason is sport/target shooting and that reason provides that an applicant must be a current member of a shooting club approved by the respondent in accordance with the regulations, and which conducts competitions and activities requiring the use of a firearm for which the licence is sought. It is noted that in this case the applicant identified in his application that he was a member of a shooting club and it was for this reason he sought his licence. Weapons Prohibition Act 1998 8 S.7 of the Weapons Prohibition Act 1998 creates an offence where a person possesses or uses a prohibited weapon unless authorised by a permit. A prohibited weapon is defined in s. of that Act to mean anything that is described in Schedule 1 of that Act. That Schedule sets out descriptions of various items under four categories, namely knives, miscellaneous weapons, replicas imitations, concealed blades etc. and miscellaneous articles. Cl.2 relates to miscellaneous weapons and includes the following: '(2) Any device that is designed to propel or launch a bomb, grenade, rocket or missile by any means other than by means of an explosive, including a device known as a PVC cannon. … (5) A crossbow (or any similar device) consisting of a bow fitted transversely on a stock that has a groove or barrel designed to direct an arrow or bolt. …' Evidence 9 The respondent relied on the circumstances surrounding a finding by the Tully Magistrates Court in Queensland, on 13 October 2005, that the applicant was guilty of two firearms offences which had occurred on 14 September 2001. In addition to this the respondent relied on the circumstances surrounding a conviction in the Hornsby Local Court, on 11 May 2005, in respect to a charge of making a false and misleading statement and the events that led to the applicant being charged, on 26 September 2005, for offences of assault and possessing and using a prohibited weapon. These charges were all subsequently withdrawn and dismissed on 11 April 2006 when the alleged victim of the assault charges failed to appear at the hearing. That victim was, Ms Y Robertson, who was a work colleague and former girlfriend of the applicant. In addition to this the respondent relied on circumstances in which a firearm, registered in the name of another former girlfriend had gone missing. 10 In respect to the abovementioned matters, the respondent relied on several COPS events reports, the applicant's criminal record in respect to the Queensland offences, an affidavit of Constable K.H. Jeanes sworn on 18 April 2006, an affidavit of Constable K. Burke sworn on 19 April 2007, an affidavit of Detective Sergent K. Ward sworn on 19 April 2007, a witness statement of Ms Robinson dated 26 September 2005 together with photographs that were taken of Ms Y. Robertson on 26 September 2005 and photographs of empty bullet shells, a long pipe and a cross bow that were located at the applicant's premises on 26 September 2005. 11 Constable Jeanes, Detective Sergent Ward and Constable Burke were also called to give oral evidence and to be cross-examined by the applicant. 12 The applicant also gave oral evidence and tendered into evidence several documents including an unsigned letter dated 23 April 2007 from Ms Y. Robertson. That letter sets out Ms Robertson's explanation of events that occurred on 24 September 2005. Ms Robertson also gave oral evidence at the hearing and was cross-examined by Mr Pisani on behalf of the respondent. 13 From the material before the tribunal the sequence of events are as set out in the paragraphs below. 14 The applicant, who is 29 years of age, is employed with the Armed Forces. In 2001 he was assigned to work in Tully in Queensland. While he was there he had in his possession a firearm which was not registered. In his oral evidence the applicant stated that he took this firearm to the local police station in Tully when he first arrived there. He explained that he took it there so as to make them aware that he would be using the firearm to shoot feral animals. It was the applicant's evidence that the police officer at the time took no issue with the applicant's continued possession and use of the firearm for the purpose he intended. 15 According to a Queensland police brief, on 14 September 2001, the applicant was seen by an off duty police sergeant riding a motorcycle at Mission Beach. The sergeant observed an object which he thought to be a rifle wrapped up in a doona and secured to the rear of the applicant's motor cycle. The police brief goes on to state, as far as is relevant, as follows: '…[the] [applicant] was known by the Sgt to be a keen pig shooter and as such the Sgt though (sic) no further of this. At about 17.45 hours on Friday, 14th day of September 2001, Police from Mission Beach received a telephone call from a person who identified herself [the applicant's then girlfriend]. She is the ex de facto of the [applicant] now before the Court. [The applicant's former girlfriend] informed police that the [applicant] had just phoned her and had told her that he was going to shoot himself. [The applicant's former girlfriend] stated that she heard [the applicant] cock what was thought to be a rifle. [The applicant's former girlfriend] stated that since the phone call she has made numerous attempts to contact [the applicant] by phone, however this was unsuccessful… About 20.00 the same day, Sgt located the [applicant] at his home address. When spoken to in relation to [the applicant's former girlfriend's] claim the [applicant] denied knowledge of her the (sic) phone call.' 16 After questioning the applicant the Queensland police charged the applicant with two offences, an offence of unlawful possession of a weapon and a further offence of storage of a restricted item. The circumstances giving rise to these charges were also referred to in the Queensland police brief, which states, so far as is relevant, the following: 'In relation to Charge 1:- When questioned about a Weapons licence the [applicant] handed Police an army identification card. The [applicant] informed Police that he thought that this card was his shooter's licence. When further questioned the [applicant] informed Police that he was not the holder of a current Queensland, or any other State shooter's licence. In relation to Charge 2:- When questioned as to the location of the firearm the [applicant] initially informed Police that the rifle was being stored at a friend's place in Wongaling Beach as his friend had secured a storage. The [applicant] was then informed that a search was going to be conducted. On being informed of this the [applicant] readily told Police that his rifle was inside a [unable to read] cupboard. Police then opened an unlocked door at a [unable to read] cupboard and located a 101 calibre rifle wrapped up in a doona. Police noted that the rifle had the bolt in place and further located two magazines belonging to the rifle. Police also observed a quantity of ammunition for the rifle inside the cupboard. When questioned the [applicant] informed Police that he was aware of the storage requirement for firearms.' 17 The applicant returned to Sydney in November 2001 before the charges were dealt with. 18 In January 2004, the applicant applied for a firearms licence under the NSW Act. On receiving the application the Firearms Registry became aware of the outstanding Queensland criminal warrants in the name of the applicant relating to the abovementioned firearms offences. As a result of this on Monday, 10 May 2004, Constable Jeanes attended the premises where the applicant was living for the purpose of asking him questions about the outstanding warrants. He was asked if he had ever lived in Queensland around 2001 and he responded by saying that he did not but had visited his grandmother who lived in Brisbane. Constable Jeanes also asked him whether he had ever been in trouble with police in Queensland to which he responded 'No' with a surprised look on his face. The applicant also responded 'No' to a question as to whether he had ever lived at Wongaling Beach in Queensland. When told that there were a number of outstanding warrants for a person with the same name as the applicant and with the same date of birth, the applicant denied being that person. He was then shown the warrant and again denied being the person named in the warrant. On receiving these denials Constable Jeanes returned to her usual duties and in the course of these made some further enquiries with Queensland police about the warrants. She subsequently received from Queensland police a charge photo of the person who was named in the warrants. The photo matched the exact description of the applicant and on Thursday, 10 June 2004, Constable Jeanes attended the place where the applicant was working. She placed him under arrest and charged him with an offence of making a false and misleading statement in respect to the outstanding Queensland warrants which had been shown to him by Constable Jeanes in May 2006. On 28 September 2004, in the absence of the applicant, the Hornsby Local Court found the offence proved and issued a warrant to bring the applicant before the Court. The applicant made an application to the Sydney District Court seeking an annulment of the findings of the Court. On 9 March 2005, the Sydney District Court upheld the applicant's appeal but did not grant an annulment and remanded the matter back to the Local Court. On 11 May 2005 the Hornsby Local Court sentenced the applicant to a bond to be of good behaviour for12 months. 19 In his evidence the applicant does not dispute the evidence of Constable Jeanes and he readily acknowledged that it was wrong. He explained the circumstances as to why he did not appear at the hearing of the matter in September of that year. He said that earlier that year he had booked an overseas backpacking trip to commence in July 2004. After being charged by Constable Jeanes he had approached a solicitor to act on his behalf in respect of the charges. He said his solicitor attended two appearances and then when he was not able to contact the applicant and obtain instructions he did not act for the applicant any further. The applicant went on to state that he returned to Australia on 10 October 2004, which was a week and a half earlier than he had originally planned. He also pointed out that Constable Jeanes came to his work on the day he returned and arrested him pursuant to the outstanding warrants. 20 After his return to Australia, the applicant also liaised with the sergeant at the Tully police station in Queensland in respect to the outstanding Queensland warrants. The applicant explained that he pleaded guilty to the outstanding Queensland charges as well as the NSW false and misleading statement charge. In respect to the Queensland charges he was fined a total of $1,400 but no conviction was recorded. 21 The next time the applicant came to the attention of the police was in March 2005 when police attended a domestic incident between the applicant and another former girlfriend of the applicant, Ms Hartsone, who was the holder of a firearms licence and also had a 600 West Master pump action fire rifle registered in her name. On arrival the police, having made previous enquiries, asked Ms Hartsone, where her firearm was located. Ms Hartsone informed police that the applicant had taken possession of the firearm to ensure is safe keeping. 22 It would appear that in 2004 when the applicant made his initial application to the NSW firearms registry, Ms Hartsone also lodged an application for the same category of licence. She also joined the same sporting shooters association. When making their respective applications for a firearms licence, the applicant and Ms Hartsone also made an application to the firearms registry to acquire a firearm. It would appear that the applicant and Ms Hartsone then attended the premises of a firearms dealer and selected, but did not purchase, the abovementioned firearm for the applicant. When making this selection the applicant and Ms Hartstone each a permit to acquire this firearm. While the applicant's firearms licence was refused, Mr Hartsone's application was accepted and she received her firearms licence in October 2004. Not long after this Ms Hartsone made another application for a firearms licence for the genuine reason of recreational hunting and vermin control. At the same time the applicant and Ms Hartsone again attended the premises of the abovementioned firearms dealer and on this occasion purchased the firearm which had interested the applicant previously. According to the affidavit of Detective Sergeant Ward, Ms Hartsone informed police that she and the applicant each paid half the purchase price of the firearm. Ms Hartsone also stated that she gave permission to the applicant to use the firearm and allowed him to take control of it as he wanted to use it and was more knowledgeable about them. It would appear that the applicant stored the firearm for approximately one week at the armoury where he worked. He was then requested to remove it and police have not been able to locate it again. In his evidence the applicant denied having been given ongoing possession of the firearm. 23 The next time the applicant came to the attention of the police was on 24 September 2005. On this occasion police were called to the premises where the applicant was working as a result of an altercation between the applicant and Ms V Patterson, who is also a member of the Armed Forces and at the time worked and lived with the applicant. As a result of the attendance of police, which included Constable Burke, the applicant was arrested and charged with assault occasioning actual bodily harm and common assault of Ms V Patterson. On the same day, in the company of Ms V Patterson, police went to the applicant's flat where they found a bucket containing many empty bullet shells, a long cylinder together with a long pole and two golf ball projectiles and a small cross bow. These items were seized and the applicant was also subsequently charged with an offence of possessing and using a prohibited weapon without a permit in respect to the items found. As mentioned above, these charges were all withdrawn and dismissed on 11 April 2006 when Ms V Patterson failed to appear to give evidence in support of the prosecution case. 24 In his evidence in regard to this particular incident, the applicant asserted that at all times it was he who was being assaulted and not Ms V Patterson and that he had called police. This is consistent with what he told police as evidenced in the draft statement of Constable Burke. However, it is not consistent with a signed statement that was made by Ms V Robertson two days later. It would appear that Ms V Robertson resiled from the content of the statement some time before the hearing of the charges. Furthermore, she made this known to police prior to the hearing. 25 In a letter dated 23 April 2007 Ms V Patterson stated the following: "…[whilst] neither I nor Mr Nolan will deny that we were involved in a heated argument on September 24, 2005, at no time did Mr Nolan perpetrate any assault – physical or otherwise – on my person, and in fact police involvement ensued at his request, not mine. At no time during the argument did I feel threatened; had this been the case I had ample opportunity and a mobile telephone on hand to contact police, not to mention the presence of several security guards in close proximity…the fact of the matter, as I have frequently advised NSW police, prosecutors, Mr Nolan's solicitor, his employer at the time and various other parties, both verbally and in writing, is that I assaulted Mr Nolan and then cognisant of my status as a highly trained marshal artist, he attempted to defend himself and then called for police assistance for his own protection. However, upon arriving at the scene and without making any assessment of Mr Nolan's claims or injuries (which included obvious lacerations to his facial region), police immediately placed him under arrest and proceeded to pursue an interim Apprehended Violence Order against him, contrary to the facts of the case, not to mention my wishes. I was also later informed that he was charged with Assault in relation to the matter…" 26 Ms V Patterson gave similar evidence on oath. She also emphasised how deeply ashamed she was of her own behaviour and regretted having signed the statement that she did. She explained that at the time she made her statement she was in a highly emotive and agitated state, she was angry and very upset and was not thinking of the ramifications and consequences of failing to be fully frank. In respect to the bruises on her arms and body as seen in the photos taken of Ms V Robertson by Constable Burke on the day in question, Ms Patterson stated that these were from her marshal arts classes that she took almost every day. She went on to say that it was not unusual for her to have such bruises on a regular basis. They were not she emphasised as a result of the applicant having hit her. 27 In respect to the items found on his premises the applicant stated that it was not an offence to keep empty bullet shells. As for the other items he explained that he had taken these from his place of work. The cylinder, pole and golf balls he said were used in army training sessions for the purpose of projecting the golf balls. He had taken them home as they were no longer required for training and he wanted to use the cylinder for carrying water in his four wheel drive. 28 As for the cross bow, he said that he and others had made this at work. He described it as a toy which he and his colleagues used for fun to shoot small projectiles with. Consideration 29 I have considered all the material that is before the tribunal including the submissions made by the applicant and Mr Pisani on behalf of the respondent. 30 As mentioned above there are two issues for determination in this application. The first issue is whether, having regard to the circumstances surrounding the abovementioned incidents, the tribunal is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or peace: see s.11(3)(a) of the Firearms Act. The second issue is whether the tribunal considers that the issue of a licence for which the applicant has applied would be contrary to the public interest: see s.11(7) of the Firearms Act. 31 In light of my findings in respect to the first issue it is unnecessary to make any determination in regard to the second issue. Accordingly, I have not considered this any further. 32 The meaning of the term 'a fit and proper person' was considered in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In this regard at [63] Mason CJ said the following: 'The question of whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 33 It is also well established that fitness and propriety of a person must be considered in the context of what the person would be authorised to do if the licence is granted: see Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond (supra) and in doing so regard is to be had to the objected legislation for which the licence was issued. In this case the objectives are those set out in s.3 of the Firearms Act. 34 In Hughes & Vale Pty Ltd v State of New South Wales (No.2) 93 CLR 127 at 156 Dixon CJ, McTiernan and Webb JJ said the following in relation to the purpose of the fit and proper person test: '... is to give the wider scope for judgment and indeed for objection. "Fit" (or idoeneus) with respect to an office is said to involve three things, honestly, knowledge and ability; "honesty" to execute it truly, without malice, affection or partiality; knowledge to know what he ought to do; and ability as well as a state as embodied that he may intend and execute his office, when need is, diligently and not for impotency or poverty neglected.' 35 The essence of the applicant's case is that the respondent determined his application for a licence on the basis of speculation and that he was biased. The bias having arisen from the manner in which the police had arrested him in 2005 when he called them to assist in his dispute with Ms V Patterson. That is, they attended with a preconceived view as to who the victim was and who the assaulter was and charged him on this false premise. 36 In my view there is no material to support these allegations. Even on the evidence of Ms V Patterson at the hearing, at the time police were called she clearly indicated to police that she was the victim. The fact that she was motivated by anger to present herself as the victim was obviously not apparent to police at the time. She willingly agreed to have photos taken of the numerous bruises on her body and there can have been no mistake the purpose for which they were taken. The same applies to the statement she made. 37 However, I accept the evidence of Ms V Patterson that she and not the applicant engaged in threatening violent behaviour on 24 September 2005. I also accept that Ms V Patterson regrets the actions she took following this incident. While this establishes as a matter of fact that the applicant did not perpetrate an assault on Ms V Patterson, there can be no question that they were both involved in a very heated argument that was also very public. 38 I also find that there is no direct evidence to support the contention that the applicant threatened Ms Hartsone, but the applicant did acknowledge that at some time he had possession of her firearm. Nor did the applicant dispute the evidence as to the circumstances in which Ms Hartsone purchased her firearm. However, there is no direct evidence that the applicant was responsible for Ms Hartsone's firearm going missing. 39 This leaves the Queensland offences, the false statement offence and the prohibited weapons offences. In my opinion the cylinder and cross bow both fall within the description of the abovementioned provisions of the Weapons Prohibition Act 1996 and the applicant's possession thereof were unlawful. I also do not fully accept his explanation as to why he had possession of these. Had he wanted to use the cylinder for water storage alone he would not have taken the pole and golf balls from his workplace as he would have had no need for them. At the same time there is no evidence that the applicant used or threatened to use the cylinder or the cross bow to fire a projectile there from. 40 The above offences all relate to unlawful use and storage of a firearm by the applicant. Having regard to the objects of the Firearms Act, this alone poses a risk to public safety. During his oral evidence the applicant acknowledged that when using firearms as part of his regular work duties he must comply with stringent controls over their use and possession, yet he has failed to adopt the same approach to his private use of firearms. In my opinion, the applicant's conduct in so far as it related to his firearms and prohibited weapons offences are such that he fails to have the requisite knowledge and ability to be trusted to have possession of firearms without danger to public safety. Furthermore, I find that the applicant's false statement offence directly reflects on the honesty in this regard and on this basis and my finding as to the applicant's knowledge and ability, I find that as at the date of the hearing the applicant has failed to satisfy me that he is a fit and proper person for the purposes of s.11(3)(a) of the Firearms Act. On the basis of this finding there is no discretion and the applicant's application must b e refused. 41 Accordingly, for the reasons set out above, I find that the decision of the respondent is the correct and preferred decision and I order that the decision of the respondent is affirmed.