Chown -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 83

CITATION: Chown -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 83 DIVISION: General Division APPLICANT PARTIES: Paul Dominic Chown RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 013175 HEARING DATES: 22/10/2001 SUBMISSIONS CLOSED: 10/22/2001 DATE OF DECISION: 05/16/2002

BEFORE: Lees M - Judicial Member 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 Fielden & Fielden -v- Commissioner of Police, NSW Police Service [2000] NSWADT 156 CASES CITED: Ward -v- Commissioner of Police, NSW Police Service [2000] NSWADT 28 Coates-v- Commissioner of Police, NSW Police Service [2001] NSWADT 56 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 APPLICANT REPRESENTATION: D Lucas, solicitor RESPONDENT C Capper, solicitor ORDERS: The Commissioner's decision to revoke Mr Chown's firearms licence is set aside.

Background 1 On 10 July 1998 Mr Chown was issued with a Category A and B firearms licence pursuant to the provisions of the Firearms Act 1996 (NSW) (the Act). Mr Chown had met the 'genuine reason' requirement of s. 12 of the Act on the basis he is a primary producer. 2 On 5 October 2000 Mr Chown was served with a Notice of Suspension regarding his firearm licence on the basis he was the subject of an interim apprehended violence order which had been issued on 21 September 2000. 3 On 4 May 2001 Mr Chown was served with a Revocation Order on the licence. On 31 May 2001 Mr Chown requested an internal review of the revocation decision. 4 On 21 June 2001 on internal review the decision to revoke the licence was affirmed with the decision maker relying on the same legislative provisions applied by the original decision maker. 5 On 18 July 2001 the applicant, Mr Chown, applied to the Administrative Decisions Tribunal (the Tribunal) to have it review the decision of the delegate of the Commissioner of Police (the Commissioner) of 21 June. 6 The jurisdiction of the Tribunal is drawn from the provisions of the Act and those of the Administrative Decisions Tribunal Act 1997 NSW (the ADT Act). Legislative Scheme 7 The Act establishes a scheme for licencing people to possess and use firearms. Its principles and objects are found in s. 3: (1) The underlying principles of this Act are: (a) to confirm firearm possession and 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 controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms….. (2) The objects of this Act include: (e) to ensure that firearms are stored and conveyed in a safe and secure manner … 8 Section 11 provides the general restrictions on the issue of licences: (3) a licence must not be issued unless: (a) the Commissioner 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, and ………. (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable 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…………… 9 Section 24 contains provisions relating to the revocation of licences. Section 24(2) of the Act, so far as it is relevant, provides that: A licence may be revoked: (a) for any reason for which the licences would be required to be refused a licence of the same kind, or … (d) for any other reason prescribed by the regulations. 10 Clause 17 of the Firearms (General) Regulation 1997 (the Regulation) reads: In accordance with s. 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. 11 Section 23 of the Act concerns the suspension of a licence on the making of an interim apprehended violence order: (1) A licence that authorises a person to possess or use a firearm is automatically suspended on the making of an interim apprehended violence order against the person. (2) The licence is suspended until the order is confirmed or revoked. The Evidence 12 The Police material before the Tribunal consisted of: · two photocopied COPS (Computerised Operations Police System) report print outs (dates unclear) re events numbered E 6292421 of 7 January 1999 and E 10303004 of 11 September 2000; · a Notice of Suspension of Firearms Licence dated 5 October 2000 with a one page issue document of Senior Constable Hando dated 5 October 2000 recommending suspension; · a copy of a letter from the Clerk of the Crookwell Local Court to the Officer in Charge at Bigga Police Station dated 30 November 2000; · a one page issue document also prepared by Senior Constable Hando dated 27 December 2000 recommending revocation; · a copy of a memorandum from Senior Constable Michael Hando to Sandra Grugan (of the Police Service Firearms Registry) received 3 May 2001; · a copy of the Revocation Order for 'Firearms Licence 4061944108 Category A B' together with a Statement of Reasons of delegate D. Walsham for the Commissioner posted on 4 May 2001; and · a copy of a Firearms Registry letter headed 'Internal Review-Statement of Reasons' of delegate Marie Griffin dated 18 June 2001. 13 Copies of documents Mr Chown had provided to the Police were also provided to the Tribunal with the above material. These were: · a photocopied letter from Mr Chown dated 27 May 2001 seeking internal review of the revocation decision; · a photocopied letter from the applicant's mother Mrs Valerie Chown dated 28 May 2001; · two ANZ bank statements detailing Mr Chown's account in 1998, 1999 & 2001 addressed to Mr Chown at Strathaird; · two sales invoices dated 30 June 2000 and 25 May 2001 addressed to Mr Chown at Strathaird; and · an Affidavit sworn by the applicant Paul Dominic Chown dated 5 September 2001. 14 The Tribunal also had before it Mr Chown's completed 'Application for Review of a Decision' under letter dated 13 July 2001 from solicitors Manfred Dougall & Company. 15 Mr Chown attended before the Tribunal on 22 October 2001 and gave sworn evidence. Oral submissions were received from Ms Lucas on behalf of Mr Chown and Mr Capper on behalf of the Commissioner. 16 The first COPS Event report records allegations by Mr James McKay, a neighbour of Mr Chown's father Roy, against the Chowns concerning some damage he had experienced to some of his property. The report states that Mr McKay had no proof of his allegations and that there were other circumstances suggesting that some other persons may have been responsible for the damage. 17 The second COPS report records that on 11 September 2000 a verbal argument occurred between Mr Chown and Mr McKay after which both men contacted the Police. According to the report Mr Chown alleged that Mr McKay confronted him while he was moving stock along a road and accused him of theft and arson and demanded to see a stock moving permit; the Police advised Mr Chown of his options and that Mr McKay would be 'spoken to about his actions'. Mr McKay's allegation was that Mr Chown had abused him and threatened to shoot him; the Police informed him they were off duty and would send a car 'if he had fears'. Mr McKay is reported to have said he would rather speak to local police the next morning. The Police spoke with Mr McKay the next day and he indicated he was considering applying for an AVO against Mr Chown. The Police report states they spoke with Mr Chown on 16 September 2000 at which time he denied making any threats and that he just wanted to avoid Mr McKay. [Mr Chown says this conversation occurred on 12 September 2000 as he was away from the region shearing on 16 September 2000.] The report states Mr Chown was warned of the consequences if he did make threats. 18 On 15 September 2000 Mr Roy Chown was also the subject of a complaint made by Mr McKay to the Police. 19 On 18 September 2000 Police attended Mr Chown's parents' property "Hillandale" to serve an Interim Apprehended Violence Order against Mr Roy Chown. On that visit the Police seized firearms stored at that property which were owned by Mr Roy and Mr Paul Chown. 20 On 21 September 2000 an Interim Apprehended Violence Order was also served upon Mr Paul Chown for him to appear at the Crookwell Local Court on 28 September 2000. Mr Chown subsequently surrendered his firearms licence. 21 On 28 September 2000 at Crookwell Local Court both Chowns made applications for AVOs against Mr McKay. The Magistrate adjourned the matters until 30 November, the interim AVOs remaining in force until that time. 22 On 5 October 2000 the Police issued Notices of Suspension (of firearms licences) to both Mr Roy and Mr Paul Chown. Mr Paul Chown's Notice stated it was effective until "the matter is finalised at Court". 23 On 30 November 2000 the matter was finalised at the Crookwell Local Court by the Magistrate dismissing all the complaints on undertakings being given by the parties to curb their behaviour. The Magistrate also ordered that the Chowns' firearms be returned to them. The Chowns' firearms were not returned. 24 On 12 December 2000 an incident occurred between Mr Roy Chown and Mr McKay, resulting in the Police deciding to apply for AVOs on behalf of both men. 25 On 27 December 2000, Senior Constable Hando recommended that the suspensions relating to the Chowns' firearms licences made on 5 October 2000 'remain' in force. In relation to Mr Roy Chown the Police sought suspension until the AVO matter between him and Mr McKay was finalised in court. In relation to Mr Paul Chown the reasons provided for the requested suspension were that Mr Paul Chown 'was the son of Roy Chown', that he lives with his father and that he 'has in the past been involved in disputes …… involving both his father and James MCKAY'. 26 On 26 April 2001 at the Crookwell Local Court both Mr McKay and Mr Roy Chown were made the subject of two-year Apprehended Violence Orders. 27 The 3 May 2001 memorandum from Senior Constable Hando to Sandra Grugan stated that all the firearms registered to Mr Roy and Mr Paul Chown 'were confiscated as a result of AVO complaint some time ago. Their licences were suspended as a result of that complaint'. In that memo Senior Constable Hando stated that he felt in relation to Mr Paul Chown's firearms licence that it should be revoked 'due to the fact that his father Roy would have access to firearms owned by his son'. 28 In his letter seeking internal review of the original decision Mr Chown had advised the Firearms Registry that he did not live with his parents at 'Hillandale' and had not lived there since 1995. Since 1995 he has lived in a house on the property of David and Sue Webster and his address has been 'Strathaird', Taylors Flat Road, Reids Flat, some 17 kilometres away from his parents' home. 29 Mr Chown denied that he had been living at his parents' property as stated in Senior Constable Hando's document of 27 December 2000 and Mr Walsham's document of 4 May 2001 and noted that this fact has been recognised in Ms Griffin's document of 18 June 2001. 30 Mr Chown's practice had been to store his guns in a steel gun cabinet at Strathaird, with his ammunition kept in a separate locked container. 31 He explained the reason why his guns were stored at his parents' property when Police attended to serve his father with an interim AVO. He leaves his home at Strathaird at times in order to go away shearing. His guns were stored at Hillandale on 18 September 2000 because he was away from Strathaird on one of these shearing trips. 32 Mr Chown's mother Valerie also wrote to the Firearms Registry on behalf of her son. Her letter confirmed that her son had not lived at Hillandale since 1995 and that the reason his guns were there on 18 September 2000 was that he was 200 kilometres away from Strathaird shearing and did not want to leave the guns at Strathaird while he was away. Mrs Chown confirmed that Mr Chown had worked for the Websters for four years or so but had taken leave in 1999 to go shearing in order to save some money. 33 The bank statements of May 2001, January 1999 and December 1998 are each addressed to Mr Chown at Strathaird. The two sales invoices dated June 2000 and May 2001 are also addressed to Mr Chown at Strathaird. 34 Mr Chown stated that he goes to Hillandale on weekends to 'help go round the stock'. 35 Mr Chown expressly disagreed with some of the details in material relied upon by the Commissioner, particularly the internal review statement of reasons. He denied that he had 'usually been involved and in attendance' when Police have visited Hillandale in relation to the disputing between Mr Roy Chown and Mr McKay. 36 He denied being involved in 'disputes' with Mr McKay, acknowledging there had been one dispute only. He acknowledged that he and Mr McKay did argue but that he neither started the argument nor threatened to shoot Mr McKay. His denial of the threat was adamant and would be made 'til the day I die'. 37 Mr Chown wants to avoid Mr McKay; he does not want contact with him. The problematic stock trail has been rerouted to avoid contact and possible friction in that regard. Mr Chown's evidence at the hearing was that he had not seen Mr McKay since the day of the Crookwell hearing, ie. nearly eleven months ago, and he had not spoken with him since the incident on the road over twelve months before. 38 Mr Chown gave evidence that he is a primary producer in his own right, leasing several blocks in the area and running 500 or so stock. Occasionally he helps the Websters on their property. He genuinely needs his guns to address the continuing vermin problem, particularly around lambing season. Shooting the relevant animals, whether vermin such as dingoes, foxes or pigs or distressed stock, is considered the most 'humane' method. He has suffered stock losses due to not having his licence and guns. He gave evidence that since losing his guns and licence he has had to drag distressed cattle to his ute and take them to neighbours for destruction and that he has killed a pig/s using a hammer. 39 Mr Chown is 26 years of age. He has used guns since about 1991 or 1992 under relevant minors permits. He has no history of any criminal or firearms breaches of the law. Although the subject of an interim AVO as described, he has never been the subject of a final AVO (which would require revocation). He understands the need for strict controls over the possession of firearms and appreciates that holding a firearms licence is a privilege that he has never abused and he has no desire or intention to do so. His possession and use of firearms under the new Act since 1998 has not given rise to any incident whatsoever. He has no drinking problem. Submissions 40 Mr Chown submitted that he is of excellent and unblemished character. He submitted further that his guns should have been returned to him on 30 November 2000 as ordered by the Magistrate at Crookwell Court. 41 Ms Lucas submitted for Mr Chown that there is no reason pursuant to s. 24(2)(a) of the Act that Mr Chown would be required to be refused a licence. Mr Chown understands his responsibilities under the Act and that holding a firearms licence is a privilege. He has not breached the Act nor does he intend to and there is no evidence to support the view that it was not in the public interest for him to continue to hold a firearms licence. His circumstances, since his being issued with a licence in 1998, have not changed. In relation to s. 11(4)(a) of the Act, Ms Lucas submitted that it has not been demonstrated that Mr Chown may not personally exercise continuous and responsible control over his firearms. 42 On behalf of the Commissioner, Mr Capper submitted that the decision to revoke Mr Chown's licence should be affirmed. The licence should remain revoked due to the operation of s. 11(4)(a) and s. 24(2)(a) of the Act and cl.17 of the Regulation the same provisions relied upon in the earlier decisions, namely that there was reasonable cause to believe Mr Chown may not be able to exercise continuous personal control over his firearms because of his living or domestic circumstances and secondly that it could no longer be considered in the public interest for him to possess or use firearms. 43 In relation to not exercising continuous personal control over firearms (s. 11(4)(a) & s. 24(2)(a)) Mr Capper referred to the fact Mr Chown had in the past left his guns secured at his parents' property when he went away from his own home for work and that this was indicative of what Mr Chown would do in the future. 44 In relation to the public interest basis (cl. 17) Mr Capper referred to the decisions of Fielden & Fielden -v- Commissioner of Police, NSW Police Service [2000] NSWADT 156 and Ward -v- Commissioner of Police, NSW Police Service [2000] NSWADT 28 in which public interest is defined in terms of the objects and principles of the Act noting specifically that holding a firearms licence is a privilege and that public safety is the paramount consideration. He submitted that Mr Chown's personal interest as a primary producer in vermin and stock management had to be weighed with the public interest in its own safety. He referred to Mr Chown having continuing animosity towards Mr McKay and Mr Chown's need to kill vermin or stock on his properties, which were not so distant from Mr McKay's property, as bases for concern. He also submitted that if Mr Chown's guns and licence were returned to him he could take the guns to his parents' property. Mr Capper's submission was that Mr Roy Chown would have access to any gun brought onto his property and that this posed a serious risk. He submitted that Ward requires (at para 28) that the Tribunal have confidence that a licensee poses 'virtually no risk' to public safety if s/he had access to firearms. 45 Mr Capper also referred to the decision in Coates-v- Commissioner of Police, NSW Police Service [2001] NSWADT 56 submitting that at its core was the relationship between Mr Coates and his wife and that the Tribunal should consider Mr Chown's circumstances in the same way, that is, that at the core of the revocation is the relationship between Mr Chown and Mr McKay and Mr Roy Chown. 46 In relation to the Magistrate's order that the guns be returned, Mr Capper suggested this was not the Magistrate's role, that it was rather the Tribunal's role. There was a suspension order and then a revocation order in place. Whether or not it was the Magistrate's role, the revocation order made was consistent with the provisions of the Act. Findings and Reasoning 47 As soon as the interim apprehended violence order was issued on 25 September 2000, Mr Chown's licence was automatically suspended by operation of s. 23 (1) of the Act. By operation of s. 23(2) of the Act the suspension lasted until 30 November 2000 when the matter was heard and dismissed by the Crookwell Local Court. 48 In the context of the present application, s. 11(4)(a) requires that there be reasonable cause to believe that Mr Chown may not personally exercise continuous and responsible control over firearms because of his living or domestic circumstances. The Commissioner's original basis for this belief was that Mr Chown's 'living or domestic circumstances' were that he resided with his father who has a revoked firearms licence. The Commissioner's original basis for forming the view that it was not in the public interest that Mr Chown hold a licence was the same belief. 49 It has been established that Mr Chown did not at the relevant time live with his parents and has not in fact lived there since 1995. The original given reasons by the Commissioner were based on an error of fact. 50 The facts establish that at one point in time Mr Chown stored his firearms at Hillandale while he was away from his home at Strathaird. The reason for this was the sensible one of safety, so as to not leave firearms in an empty house for lengthy periods of time. That is evidence of Mr Chown's responsible control over his firearms. Concerning his past and future visits to his parents property and the use of his guns there in the past Mr Chown's evidence was a little inconsistent but he was clear that he had never breached the Act and had no intention to do so in the future. The Tribunal is of the view that any future storage arrangement made by Mr Chown will also comply with the law. There is no basis in the evidence to conclude that Mr Chown 'could not exercise continuous and responsible control over his firearms' at his own home or on his future visits to his parents property should he take his firearms with him. Ms Lucas submitted that speculation to the contrary was unfounded. The Tribunal agrees. 51 The Tribunal's Appeal Panel considered the exercise of the public interest discretion in a security industry licencing matter in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9. It stated (at p 25) that the public interest is '. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual….'. 52 In Ward the Deputy President of the Tribunal found that these comments apply equally to the Firearms legislation (at para 33). 53 Accordingly, the relevant public interest considerations in this application depend on both the circumstances giving rise to the application and the scope and objects of the Act. Mr Capper's submission was that the objects and principles of the Act make clear its intention that firearms possession and use be regarded as a privilege conditional on the overriding need to ensure public safety. 54 Mr Chown's account of the incident with Mr McKay was not contradicted by other evidence. His concern with the accuracy of some of the reasoning in the internal review decision is made out. The decision refers to the COPS Event reports as stating there had been 'a number of allegations of threats of violence…directed towards you and your father by your neighbour and towards your neighbour by you and your father'. There is nothing in the COPS reports relied upon (or at least those provided to this Tribunal) to found this conclusion; there is also nothing in them to found the further conclusion in the decision that such allegations or accusations 'have included threats of shootings and have escalated in frequency and severity since September 2000'. 55 In the COPS event reports provided to the Tribunal there is evidence of only one alleged threat of violence, that by Mr Chown to Mr McKay (which has been adamantly denied). 56 I make no finding as to whether the alleged threat actually occurred or not. The allegation is relevant but so is Mr Chown's repeated denial both at the relevant time and subsequently. It is notable that when Mr McKay spoke with Police about the incident the record gave no indication or apprehension of fear on Mr McKay's part. In fact he was asked whether he 'had fears' in which case the Police would send somebody over. Mr McKay said he would contact local police the next day. 57 There is no evidence that establishes Mr Chown has been or is a threat to the safety of any member of the public, Mr McKay included. 58 In relation to Mr Capper's submission that the 'relationship' between Mr McKay and Mr Chown and Mr Roy Chown was of such a nature to give rise to public safety concerns, the Tribunal disagrees. Mr Chown has altered the stock route that had previously been a problem and has also successfully avoided all personal contact with Mr McKay for a long period of time. Although there is certainly a history between Mr Chown and Mr McKay their current and foreseeable 'relationship' from Mr Chown's perspective is one of avoidance. There was no evidence to suggest that Mr Chown had any intentions of any kind in relation to Mr McKay except to avoid him, which he has succeeded in doing including when he visits his parents' property. 59 Mr Chown is an individual in his own right, separate from his father. He understands that it is a privilege not a right to be licenced to use firearms and he understands the obligations one has in relation to possessing and using firearms. He needs his guns and wants them back as well as his licence to use them. There was no evidence establishing he has or would disregard his obligations so as to risk anyone's safety or losing his licence. He knows his father has no firearms licence and knows he should not place either himself or his father at risk of prosecution for breach of the Act or any other law. 60 Having considered all the material put before the Tribunal and having had the benefit of hearing from Mr Chown personally, the Tribunal is satisfied he poses 'virtually no risk' to public safety. The protection and welfare of the community have not and would not be compromised by Mr Chown holding a firearms licence. Accordingly, in relation to cl. 17 (and s. 24(2)(d)) it is not considered to not be in the public interest for Mr Chown to continue to hold one. In relation to s. 11(4)(a) the Tribunal is not satisfied there is reasonable cause to believe Mr Chown has not or may not personally exercise continuous and responsible control over his firearms because of his living or domestic circumstances. Accordingly such does not serve as a basis for revocation pursuant to s. 24(2)(a). Decision 61 The correct and preferable decision is that Mr Chown be allowed to continue to hold a firearms licence. Accordingly, pursuant to s. 63 (3)(c) of the Tribunal Act, the decision of the Commissioner of Police to revoke Mr Chown's firearms licence is set aside.