Robinson v Commissioner of Police, NSW Police [2005] NSWADT 5

CITATION: Robinson v Commissioner of Police, NSW Police [2005] NSWADT 5 DIVISION: General Division APPLICANT PARTIES: Denis William Robinson RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 043244 HEARING DATES: 03/11/2004 SUBMISSIONS CLOSED: 11/03/2004 DATE OF DECISION: 01/10/2005

BEFORE: Montgomery 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 : Registered Clubs Act 1976 Weapons Prohibitions Act 1998 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED: Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127 Sobey v Commercial and Private Agents Board 20 SASR 70 APPLICANT REPRESENTATION: S McAnulty, barrister RESPONDENT D Shepherd, advocate ORDERS: The decision of the Commissioner of Police, NSW Police Service to revoke Mr Robinson's licences is set aside.

REASONS FOR DECISION 1 Mr Dennis Robinson ("the Applicant") is the proprietor of a security business known as Botany Mascot Security ("the business"). He has worked in the security industry for the past 27 years and apart from these current matters he has not had any previous adverse findings or licence suspensions. In 1997 he was issued with a category H firearms licence under the Firearms Act 1996 and the licence was reissued on 1 January 2003. It was due to expire on 1 January 2008, however this licence was revoked on 5 November 2003. A Business Pistol Licence was also revoked on that day. 2 At the time the business employed between three to four staff and maintained four firearms. The Applicant has installed a safe at his residential premises where he has kept firearms and any other instruments used by the staff of the business. 3 The Applicant sought an Internal Review of the revocation decisions. That review was undertaken on 6 July 2004 and it was determined that the two decisions were to stand. On 29 July 2004 the Applicant applied to this Tribunal for a review of the Commissioner's decisions to revoke both the Applicant's Personal Category H firearms licence and the Business Category H firearms licence. The Commissioner's case 4 Senior Sergeant Shepherd appeared for the Commissioner and relies on the brief of evidence filed in the matter. The essence of the Commissioner's case is that the Applicant is not a fit and proper person to continue to hold a firearms licence. He points to the records maintained on the Computerised Operational Policing System ("COPS") that records complaints and other issues relating to the Applicant dating back to 1997. 5 The Commissioner asserts that on 13 January 1997 the Applicant attended the Roden Training Centre Pistol Range ("the Centre") for shooting practice. The Commissioner contends that the Applicant advised the Centre's staff that his firearm was clear, and that when he removed the magazine from the firearm he cocked and released the slide without checking the breech. When he pointed the firearm down and pulled the trigger, he accidentally discharged one round into the tiles in front of the counter area. 6 The Commissioner further contends that the Applicant informed the Centre's staff that "it was only a cap, not a live round ". He then asked staff to not report this matter and left the Centre. Upon inspection of the area in front of the counter a hole was detected in the tiles and the remains of the projectile and the spent case were found. 7 The Internal Reviewer stated that "As the holder of a Category H firearms licence issued for the genuine reason of employment as a security guard you were not authorised for this activity" however this issue was not pursued at the hearing. 8 With the exception of the COPS record the Commissioner did not produce any evidence in relation to this alleged incident. It appears that the allegations were raised in writing by a senior firearms instructor at the Centre. No copy of the correspondence was put in evidence. No explanation was provided for the failure to produce such evidence. 9 The Commissioner also points to other COPS records of three allegations of sexual misconduct and misconduct involving firearms against the Applicant. The Commissioner argues that there is sufficient similarity in the reports that, although none of the matters proceeded to charges, there must be some substance to the allegations. 10 The first relates to an event of 21 March 1999 when Police attended the Applicant's residence following a 000 call from a woman residing at the premises. The woman, a juvenile, had answered a newspaper advertisement for free accommodation in return for cooking/housekeeping duties. She alleged that the Applicant showed her his firearms and allowed her to dress in his security uniform, including handcuffs; expandable baton, bullet resistant vest and firearm. She also alleged that the Applicant had made unwanted sexual advances towards her. The Police who attended seized the Applicant's firearms and inspected his safe, but took no other action. The firearms were later returned. 11 With the exception of the COPS record the Commissioner did not produce any evidence in relation to this alleged incident. No statement was taken from the complainant in relation to the incident. Police spoke to the Applicant at the time and the matter was taken no further. 12 A COPS entry dated 24 March 1999 indicates that the Applicant was also issued with infringement notices for the offences of "Register minor as guest" under section 30(2)(k) of the Registered Clubs Act 1976 on the basis of his admission that he had gone with the woman to the Georges River Sailing Club when she was under 18 years of age. 13 The second alleged incident recorded by a COPS entry relates to an event of 18 December 2001. This also involved a woman who had replied to the Applicant's advertisement for a housekeeper. This complainant alleged that the Applicant had attempted to sexually assault her and that he had been in possession of a loaded handgun and she had taken it as a threat. 14 The complainant did not respond to several attempts by Police to contact her following the making of these allegations. She eventually advised Police that she had changed her mind about making a statement and did not wish for any further investigation into the matter. Consequently, the Commissioner has no evidence in addition to the COPS entry in relation to this incident. However, the Commissioner argues that fact remains that the allegations were made and whilst the allegations did not result in charges it does not mean that the events as reported to Police did not occur. 15 The third alleged incident recorded by a COPS entry relates to an allegation that that on 19 July 2003 the Applicant hypnotised a woman and had sex with her. This statement was later retracted. A COPS entry in relation to this complainant refers to other assault allegations by the same complainant with no action taken against a person. It observes that: "She has on previous occasions claimed to have been raped by astral males on regular occasions. The victim also has warnings for mania." 16 With the exception of the COPS record the Commissioner did not produce any evidence in relation to this alleged incident. However, the Commissioner argues that fact remains that the allegations were made and whilst the allegations did not result in charges it does not mean that the events as reported to Police did not occur. 17 The Commissioner also refers to the fact that the Applicant was found to be in possession of a body armour vest after his permit authorising its possession had expired. A body armour vest is an article classified as a prohibited weapon in Schedule 1 of the Weapons Prohibition Act 1998. Section 7 of that Act provides that a person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit. On 7 February 1996 the Applicant was issued with a permit authorising possession of a vest. This was issued under previous legislation, and had not been renewed following the legislative change. The Commissioner contends that the Applicant understood the need for a permit because he held one under the previous legislation. However, his disregard for his obligations in this regard raises concerns regarding his level of responsibility. 18 The Commissioner concedes that the Applicant has never been charged with any offence and that with the exception of the vest, all firearms and ammunition in the Applicant's possession was authorised and safely kept at the time of seizure by Police. However, the Commissioner asserts that any past and present conduct that may be relevant in deciding whether the Applicant is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. The objects and principles of the Act state that firearms are a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principle issue is whether there is a risk to the safety of the public if the applicant retains the licence. The Tribunal must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. The Commissioner argues that the Tribunal could not be satisfied that the Applicant does not present a danger to public safety and, accordingly, it is not in the public interest for the Applicant to continue to hold a firearms licence. The Applicant's case 19 The Applicant's evidence is that he has been working within the security industry for the past 27 years and that he has undertaken considerable firearms safety training and would attend a firing range possible weekly to ensure that safety training and compliance was maintained when using firearms. He also maintained a register of staff and ensured that their accreditation is up to date. He asserted that he is acutely aware of the need to maintain safe keeping of firearms and that he used his best endeavours to ensure that both he and his staff were proficient in the use, handling and storage of those weapons. 20 The Applicant provided a response in relation to the allegations contained in the Commissioner's material. In relation to the discharge of the firearm at the Roden Training Centre the Applicant confirmed that he was present on that occasion. He stated that on attending the range he spoke with two other persons and he became aware that the slide on the weapon had jammed. The Applicant took the weapon because he perceived that they were causing danger in trying to un-jam it. He then pointed it to the ground and pulled the slide back and the weapon accidentally discharged. He disagreed that he had recklessly discharged the firearm. He also denied that he ask that the incident not be reported. He said that after the incident he was contacted by a Constable Donald who advised him that he would hear no more about the matter. 21 In relation to the COPS entries said to evidence complaints by two women who had responded to advertisements for housekeepers, the Applicant denied any misconduct or impropriety. While he conceded that he took one of the complainants to the Georges River Sailing Club in March 1999, he stated that she had told him that she was 18 years old and that he had no idea that she was under the legal age. The Applicant denies the allegations contained in the COPS entries as to the misuse of firearms. 22 The Applicant stated that he was never formally interviewed about these matters and that he has never been shown any statement made by the complainants. 23 The Applicant denies the allegations contained in the COPS entry alleging that on 19 July 2003 the Applicant hypnotised a woman and had sex with her. He stated that he was never formally interviewed about this matter and that he has never been shown any statement made by this complainant. He denied any improper dealings with this woman and denied any abuse of firearms as far as she is concerned. 24 With respect to the issue of the Applicant's possession of a body armour vest after his permit authorising its possession had expired the Applicant stated that he had been issued with a permit under earlier legislation and he had understood that it was a lifetime permit. However, new legislation had changed that situation and he was not aware of the changes. 25 The Applicant relies on written testimonials provided on his behalf by Mr Martin Knight, Ms Lynette Zuchetti and Ms Tania Rhodes. Mr Knight also gave oral evidence and was subjected to cross-examination. While available, the authors of the other testimonials were not required for oral evidence. In essence, the written testimonials and Mr Knight's oral evidence support the Applicant's contention that he is a responsible person in respect of his use and storage of firearms, and that the allegations against him of sexual misconduct and misconduct involving firearms are out of character. 26 Mr Knight also gave evidence that there was limited knowledge within the security industry regarding the need to renew permits authorising the possession of body armour vests. His evidence was that the changed legislation had not been widely publicised and that it is easily understood how the Applicant would not have been aware of the changes. 27 Several statements from the Applicant's clients were also put in evidence. Each supported the Applicant's evidence as to the nature of his contractual obligations and that armed surveillance is a condition of the contracts Findings and Reasons 28 The Applicant has applied to this Tribunal for a review of the Commissioner's decisions to revoke his firearms licences. The essence of the Commissioner's case is that the Applicant is not a fit and proper person to continue to hold the licences. 29 The approach to the issue of whether a person is fit and proper to hold a licence has been considered in numerous cases before this Tribunal. The cases of Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 are commonly considered in these matters. In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J provided a reasonable summary of the law: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails." 30 The primary issue here is whether the Applicant is able to demonstrate qualities that would allow the Tribunal and the public to have confidence in his honesty, knowledge and capacity in relation to these licences. The evidence provided in the Applicant's favour suggests that he has those qualities. Put at its highest, the Commissioner's evidence to the contrary is flimsy. It comprises a number of unsubstantiated allegations of sexual misconduct and misconduct involving firearms and the submission in relation to those allegations is that "where there is smoke there is fire". Each of the allegations is denied. The Applicant has presented testimonials that indicate that the alleged conduct is out of character. In the circumstances I give no weight to those allegations. 31 The Applicant conceded that he took a minor to the Georges River Sailing Club in March 1999. He stated that she had told him that she was 18 years old and that he had no idea that she was under the legal age. While this may have constituted a breach of the Registered Clubs Act 1976, in the circumstances of this matter I am of the view that little weight should be given to that issue. 32 The issue of the incident at the Roden Training Centre Pistol Range where it is alleged that he accidentally discharged a firearm is more troublesome. While the facts are in dispute, it is likely that the firearm was discharged in circumstances that were potentially dangerous. This suggests conduct that is contrary to what can reasonably be expected from a licensed firearms holder. However, given the paucity of evidence from the Commissioner in relation to this issue I am unable to comment further in relation to that issue. In any event, this incident occurred in January 1997. There is no suggestion that there has been any other issue of a similar kind since that time. Accordingly, it is my view that little weight should be given to that issue. 33 The Applicant has conceded that he was in possession of a body armour vest after his permit authorising its possession had expired. The explanation provided in regard to how that came to be the case is plausible. Accordingly, it is my view that little weight should be given to that issue. 34 It seems to me that on the available evidence the Commissioner can be satisfied that the Applicant is a fit and proper person to hold these licences. The principle issue then is whether there is a risk to the safety of the public if the Applicant retains the licences. On the totality of the evidence I am satisfied that there is minimal risk to the public should the Applicant have his licences reinstated. Accordingly, it is my view that the correct and preferable decision is that the decision under review be set aside. Order 1. The decision of the Commissioner of Police, New South Wales Police to revoke Mr Robinson's licences is set aside.