CITATION: Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246 DIVISION: General Division APPLICANT Donald Wells PARTIES: RESPONDENT Commissioner of Police, NSW Police Force FILE NUMBER: 093297 HEARING DATES: 15 April 2010, 4 June 2010 SUBMISSIONS CLOSED: 4 June 2010 DATE OF DECISION: 18 October 2010 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Firearms Act - firearms licence - impose a condition on licence or permit - LEGISLATION CITED : Firearms Act 1996 Firearms Regulation 2006 Brosowski v Commissioner of Police [2003] NSWADT 182 Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 May v The Commissioner of Police [2001] NSWADT 82 Tolley v Commissioner of Police [2006] NSWADT 149 Ward v Commissioner of Police [2000] NSW ADT 28 APPLICANT In person REPRESENTATION: RESPONDENT D Ward, barrister ORDERS: 1. The decision under review is set aside 2. The decision is made that Mr Wells' firearms licence is to be subject to the following condition:Mr Wells is to provide to the Firearms Registry, at six monthly intervals (or as otherwise agreed by the Commissioners), a certificate from an appropriately qualified medical practitioner. That certificate is to certify that Mr Wells' medical condition does not impact on his ability to form a rational judgement or to exercise willpower to control physical acts in accordance with rational judgement or in any other way impact on his ability to personally exercise continuous and responsible control over firearms. REASONS FOR DECISION 1 Mr Wells was the holder of a Category ABGH firearms licence pursuant to the Firearms Act 1996 ("the Act"). The licence was issued for recreational hunting/vermin control (Category AB), Collecting (Category G) and Target Shooting (Category H). The licence was revoked in June 2009. The revocation is the decision under review. 2 A delegate of the Commissioner of Police determined to revoke the licence. The Notice of Revocation was issued on the grounds that Mr Wells was subject to a good behaviour bond in relation to a prescribed offence: sections 24(2)(a) and 11(5)(d) of the Act and the view that it was not in the public interest for Mr Wells to continue to hold a licence: section 24(2)(d) of the Act and clause 19 of the Firearms Regulation 2006 ("the Regulations"). 3 The Commissioner is of the opinion that Mr Wells is not a fit and proper person to hold a firearms licence or be in possession of firearms and that his continued access to firearms would pose a risk to public safety. Background 4 In March 2009 Police executed a search warrant at Mr Wells' property in response to information about cannabis being grown there. Police located three cannabis plants on the property. This discovery ultimately lead to the conviction of Kerry Wells, Mr Wells' wife. 5 Police also located a pair of operational handcuffs displayed on a wall amongst other memorabilia and antiques. Mr Wells was charged with possess/use of a prohibited weapon without permit pursuant to section 7 of the Weapons Prohibition Act 1998. He was found guilty of the offence but without proceeding to conviction pursuant section 10 of the Crimes (Sentencing Procedure) Act 1999. Mr Wells was placed on a good behaviour bond for 12 months. Mr Wells is no longer subject to that bond. 6 The Commissioner continues to hold the opinion that Mr Wells is not a fit and proper person to hold a firearms licence or be in possession of firearms and that his continued access to firearms would pose a risk to public safety. Evidence provided by local police officers supports this assertion. The Applicable Law 7 Section 24(2)(a) of the Act prescribes that the Commissioner may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind. 8 Section 11(4)(a) of the Act states that a licence must not be issued if the Commissioner has reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances. 9 Section 11(5)(d) of the Act prescribes that a licence must nor be issued to a person who is subject to a Good Behaviour Bond in relation to an offence prescribed by the Regulations, whether entered into in New South Wales or elsewhere. 10 Further, section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulations. 11 Clause 19 of the Regulations provides that 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. The Commissioner's Case 12 The Commissioner's concerns are largely as set out in the reasons for decision following the internal review. The Commissioner's delegate stated: I gave further weight to your prior lengthy history with firearms since 1988. This significant period of time appears to be unblemished apart from an issue recently raised ... You came to notice regarding your firearms licence due to a search warrant executed by Police on 24 March 2009 at your family property. Police located three small cannabis plants which your wife admitted owning and cultivating for personal use. I tend to agree with the previous decision maker that it is highly likely you would have known of the cultivation of these plants. Despite this, I also acknowledge the fact that the number of plants found is well below what is considered a 'commercial quantity' under Schedule 1 of the Drug Misuse and Trafficking Act 1985. Also found during the search were a pair of operational handcuffs displayed on a wall amongst other antiques and memorabilia. You were charged with possess/use a prohibited weapon w/o permit-T2'. I note your advice that you feel you were taken advantage of during the search as you were not cautioned regarding your rights and therefore you were not aware o f the consequences of your conversations with Police. You also state that you arc confused as to why you were charged with this offence because your wife owned the handcuffs. Further, you advise that you were very ill when you attended Court and were unaware that you could have requested an adjournment. However, the fact remains that on 14 May 2009 the Magistrate at Narooma Local Court found you guilty of the offence and made you subject to a good behaviour bond for one year with the handcuffs forfeited to the Crown. It is also a fact that your bond is in relation to an offence deemed prescribed by clause 5(l)(a) or the Firearms Regulation 2006 (regulations). However, in relation to this offence I give weight to your history as a collector (as evidenced by your Collector's licence and the Police report that there was also other memorabilia displayed on the wall at your residence). Therefore I find reasonable cause to believe that the handcuffs were acquired as part of a collection rather than with any criminal intent. I also note your submission that you honestly did not know that a permit was required for the handcuffs. You advise that the handcuffs were given to your wife in 1984 and have been hung in your various homes for 25 years, unconcealed and never used. Consequently, it is my opinion that this breach is towards the lower end of the scale of seriousness and accordingly I assign it lesser weight. I also note that during the search you advised Police that you had recently suffered a stroke, were not able to remember things, were having blackouts and felt generally unwell. Obviously this raised serious concerns regarding your ability to maintain continuous and responsible control of firearms, so you were requested to provide a medical report. In this regard I give weight to the medical assessment received from Dr Jennifer Wray who advised that your condition of hypothyroidism (diagnosed in March 2009) has improved considerably through replacement therapy. In Dr Wray's opinion, your condition does not impact on your ability to form a rational judgement or to exercise willpower to control physical acts in accordance with rational judgement. Consequently, I find no issue in that regard. However, ... Police hold concerns regarding the numerous incidents involving you and/or your family members as aggressors or victims. The Administrative Decisions Tribunal (ADT) has agreed that a history of confrontation and allegations of violence is cause for concern that there would be increased risk to public safety if firearms were in possession. [ Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 at para 43] Police also hold concerns regarding firearms being held at your premises as persons who frequent there are 'known' to Police, especially considering that members of your family who are known for aggressive conduct and involvement with drugs appear to be aware of the location of the keys to your safekeeping facility. The ADT has held that: "Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence" [ May v The Commissioner of Police [2001] NSWADT 82 at para 54]. Police further advise that you and your wife have acted aggressively towards Police and made threats to 'get' local officers, which has raised serious concerns for Police safety. ... I acknowledge that the opinion of local Police does not appear to be shared by your referees. However, as I believe it is entirely possible for people to act differently in various situations, in my view positive references do not give cause to ignore Police opinion. Additionally, The ADT has held that the principle issue is whether there is a risk to the safety of the public if a person retains their firearms licence. In this regard Ward v Commissioner of Police [2000] NSW ADT 28 provides (at paragraph 28): "The Tribunal could never he 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. " 13 The Commissioner relies on the evidence of Sergeant Stephen James Mawson, Sector Supervisor of the Narooma Sector within the Far South Coast, Local Area Command and that of Senior Constable Scott Michael Wharfe and Senior Constable Gregory Bowra who are also stationed at Narooma Police Station. 14 Those officers gave evidence in regard to Police dealings with Mr Wells and his family and in particular the events of 24 March 2009. Each gave evidence that was consistent with the views expressed in the internal review reasons. 15 The material on which the Commissioner relies includes the events records concerning Mr Wells and his family. These records have been taken from the Police internal data base and comprise over 280 pages. Many of these records do not directly concern Mr Wells. They mostly concern his immediate family and others associated with those family members. 16 The Commissioner also relies on the DVD of the recoding taken during the search of Mr Wells' property on 24 March 2009. 17 The Commissioner's case is that the cumulative effect of these events warrants the action taken. There is not one single event on which the decision is taken. The Commissioner points to the history of confrontation involving the Wells household, involving both threats to and from Mr Wells and his family; the possession of a prohibited weapon; the location of cannabis plants on Mr Wells' family property and the potential for Mr Wells' health issues to affect his ability to maintain continuous and responsible control of firearms. Mr Wells' Case 18 Mr Wells relies on his own evidence. He also provided a written response to much of the material on which the Commissioner relies. He stated that he was unaware of many of the incidents referred to in the Commissioner's material and is therefore unable to comment on them. He disputes the Police version of other incidents. 19 In regard to the volume of events records concerning Mr Wells and his family taken from the Police internal data base , Mr Wells relies on a letter dated 11 May 2007. The letter was written by Kerry Wells and sent to a number of people, including the Batemans Bay Police. That letter provides a narrative in relation to many of the incidents referred to in the events records. 20 In particular Mr Wells denies that he was in any way involved in the growing of cannabis on the property. He accepts that he suffered a serious illness but denies that he had had a stroke. He also denies that he allowed Kerry Wells or any other person access to his firearms or the key to his firearms safe. 21 As indicated above, Mr Wells also relies on a number of reference each of which suggests that he is well regarded by the author. 22 Dr Wray, Mr Wells' GP, attended the hearing and gave evidence in regard to Mr Wells health. Her evidence is that for a long period Mr Wells had suffered an undiagnosed condition, that he is now receiving appropriate treatment and that he has responded well to that treatment. As a consequence Dr Wray is off the opinion that Mr Wells' condition would not adversely impact on his ability manage his firearms. 23 Mr Wells asserts that he has served the community well and denies that he is a trouble maker. He says that his lack of a criminal record supports this assertion. His evidence in answer to the issues raised by the Commissioner is to a large extent similar to that set out in his 11 August 2009 letter to the Firearms Registry. That letter was sent in support of his application for an internal review of the determination to revoke his firearms licence. He wrote: "I would like to provide the following information that I believe to be relevant and applicable in my appeal and reasons as to why I disagree with this decision to revoke my firearms licence. … I believe there is insufficient facts or information on [the NSW Police Force "Fact Sheet" for Charge No. H37063504] that would implicate me or action by me to be involved in any offence committed. The first three paragraphs of [the 'Notice of Revocation'] do not relate to any offence committed by me or does not refer to me in any way whatsoever and refers to the entire search being recorded on DVD/Audio. ... On 24th March 2009 at 11:40 am a search warrant was executed at our residence. This notice was serviced on my wife who was cautioned as to her rights, as was my 17 year old son (home alone together). I was not at home when police initially arrived at the property, a 40 acre farmlet , but returned home approximately 30 to 45 minutes after the search had commenced. The officers had apparently been informed by my wife, prior to my arrival home, that I had been very ill and still had certain conditions and was asked not to frighten me. On my arrival home I was informed a search of the residence was underway by police officers, but at no time do I recall being cautioned as to my rights. I believe if I had of been given a caution as to my rights, I would have been aware of any consequences of conversing with the officers. I did not realise that I had the right to say nothing at all (and with my medical condition, I feel I was taken advantage of because of my symptoms, particularly under such a stressful situation). I was present in my home when police commented on an "old" pair of handcuffs that were hanging in the kitchen. They were taken down from the wall where they were being displayed amongst other items of memorabilia, curios and antiques. I cannot recall admitting ownership of these handcuffs but do remember discussing the engraving - the previous owners name on them, and admitted that I was unaware a permit was required to possess them. Police have visited our home on business in the past and sat at the kitchen table within 2 foot of these items hanging on the wall, they were never commented on before this time. I feel that it is not enough to say I was ignorant of the law, but I was unaware and honestly did not know a permit was required for them, or I would have had my wife apply for a permit. These "old" handcuffs were given to my wife in 1984 by an ex-security officer when we resided in Victoria. They belong to her and have been hung in various homes over the past 25 years. These handcuffs were not concealed, just hanging on a nail and thought of as antiques. They were only ever on display and never used. These handcuffs would be at least 35 years old and they looked it. A 'Property Seizure/Exhibit Form' No. A74164 … was filled out by Police and was signed by my wife who took responsibility as owner of the confiscated items. This document was issued to her. (I did not receive or sign any paper work, as I was not the owner of these articles). My wife and I assumed that she would be charged regarding possessing the handcuffs. I was confused as to why I was charged with this offence, but attended court, very ill and against my wife's recommendations and my better judgement did attend, unaware I could have requested an adjournment until a later date when I felt better. I have lived in Bermagui for the past 23 years and in this period I have aided the community and have done quite a large amount of voluntary work for my town, state and country. For 15 years I was an active member of the Bermagui Rural Fire Service, where I attended countless local house and bushfires. I attended many interstate and out of the area fires - Coonabarabran, Moruya and Cobargo, amongst others, often requiring me to be absent from work, home and young children for extended periods whilst fire fighting. As a senior member of the Bermagui Rural Fire Service, we felt the need for, and later formed the Bermagui State Emergency Service, which I helped set up. I was a member of the SES for 5 years during which time I attended many disasters and accidents eg, the Thredbo collapse, the Tathra search/murders , as well as numerous missing persons searches within the area. Bermagui RFS aided the local Police officer when rearrested during a spate of vandalism and attacks on shop windows in the town. The streets, school, shops and industrial areas were patrolled during the nights and early hours of the mornings by the RFS where I took shifts alongside the Captain RFS during this voluntary policing scheme. I was for many years and up until this month when my licence was cancelled, a Firearms Identifier for the NSW Firearms Registry whereby I attended people's homes and did inspections to enable them to register their firearms. As an Identifier, I have in the past been called to the Narooma Police Station to identify the authenticity of a (replica) pistol for them. Until this month I was an active member of WIRES and NANA where I was often called on to put down injured wildlife (and other animals such as dogs and horses being road accident victims). Last month I was contacted by WIRES to put down a badly injured kangaroo, but had to decline due to my firearms cancellation, the police were eventually called in to do this job. All of my voluntary work carried out over the many years I have done for free. I have paid for all costs, including fuel, vehicles, time away from work, home and family. I am a member of the SSAA and have been a member of the Bega Valley Pistol Club for over 10 years in which time I served as the President for many years and was the Vice President up until this month when my firearms licence was cancelled, Until this month, I was an Associate Member of the of the Bermagui Pistol Club, being a member for the past 8 years, in which time we built our range within the Bermagui Rural Fire Service Shed, then relocated to a private d bush block, the Bermagui site being an air pistol range. I have never been in any kind of trouble in my life with police and do not feel like I have committed a crime, and any suggestion that I was in any way a part of or compliant with my wife's offence is totally unjustified in stating as I have done nothing wrong. I feel devastated by your decision to revoke my firearms licence. I have always exercised the highest standards with any matters and safety issues, etc regarding my firearms, and I feel that this action taken by Firearms Registry is a very harsh punishment for me. Your letter … whereby it is stated 'that my "actions are not those of a person in whom the public would have confidence in upholding the provisions or conditions upon which a firearms licence is issued" and also stated that "it is considered that it is not in the public interest" for me to continue to hold it I believe to be an unjustified action and statement." Consideration 24 Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 25 I have considered all the evidence and submissions presented by the parties. The circumstances of this case are somewhat unusual in that the Commissioner's concerns have arisen from a series of incidents over a long period of time. The incidents mostly concern members of Mr Wells' family and not Mr Wells directly. They mostly concern Kerry Wells, Mr and Ms Wells' daughter and their daughter's boyfriend. 26 In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [27-28] the Tribunal explained that: 27 One of the objects of the Act, as set out in s 3, is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 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. 27 The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41]. 28 With the exception of the possession of handcuffs, the most serious incident alleged to concern Mr Wells was an occasion when he is said to have attended a private residence armed with a baseball bat to resolve an issue between Kerry Wells and some other individuals. That incident occurred over four years ago. It is over 18 months since the charge was brought concerning the possession of handcuffs. I note Mr Wells' assertion that the handcuffs were antiques owned by Kerry Wells. It is clear from the DVD on which the Commissioner relies that Mr Wells admitted that he owned the handcuffs. However, I also note that he asserts he was not cautioned before giving that information and that he was in poor health at the time. 29 I am not aware of any incidents concerning either that Mr Wells or his family since March 2009. I note that there is no evidence that either Mr Wells or Kerry Wells have misused firearms in the past. 30 On the totality of the evidence before me, I am satisfied that sufficient time has passed since those incidents for the Commissioner to be comfortable that under the existing circumstances Mr Wells is a fit and proper person to be the holder of a firearms licence. 31 However, on the evidence before me I would not be prepared to make the same statement concerning his immediate family. This would be a relevant factor if Mr Wells were to again fall into poor health. If his health was such that his condition impacted on his ability to personally exercise continuous and responsible control over firearms. 32 The overriding principle of the Act is public safety. The Act confirms that firearm possession and use is a privilege conditional on public safety. Section 11(4)(a) of the Act states that a licence must not be issued if the Commissioner has reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances. It is my view that the greatest concern in regard to the risk to public safety is if Mr Wells were to again fall into poor health. In those circumstances, the possibility would arise that Kerry Wells could have access to Mr Wells' firearms. It is my view that such circumstances could give rise to a risk to public safety. 33 In Tolley v Commissioner of Police [2006] NSWADT 149 Fitzgerald JM considered a case in which the Commissioner had imposed a condition on the licence which restricted the licence holder's ability to store firearms at his premises. As is the case here the Commissioner's concerns for the public safety arose not from the licence holder's conduct or antecedents, but those of his son. The son had prior convictions for drug offences conducted on the licence holder's premises, and was on remand awaiting trial for serious drug offences. Police had previously found the son in possession of 2 rifles, and had found unregistered firearms in a search of premises of his co-accused. At [31] the Tribunal found: 31… Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. 32 Public safety is not defined in the Firearms Act 1996. However, the Tribunal's Appeal Panel considered the public interest in the context of security industry licensing in Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9. At paragraph 25 it stated 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.' 34 In finding that there was a risk the Tribunal said, at [38]: 'It cannot be said that there is virtually no risk to public safety if Mr Tolley keeps the firearms at his premises. Determining hypothetical questions such as whether Stuart Tolley will return to reside with his parents and whether Mr Tolley is at greater risk of theft or home invasion is unnecessary to reach this decision. There is a risk to public safety by the existence of the firearms on premises where Stuart Tolley and his associates may be aware firearms are present.' 35 The issue for determination in this case is whether there is virtually no risk to the public safety should Mr Wells be permitted to continue to possess firearms. It is my view that it cannot be said that there is virtually no risk to public safety if Mr Wells possessed firearms but could not personally exercise continuous and responsible control over those. 36 That is not the current situation. However, in my view, it is appropriate to impose a condition on Mr Wells' firearms licence in an effort to ensure that this remains the case. An appropriate response would be that the licence be subject to the condition that Mr Wells provide to the firearms Registry, every six months (or as otherwise agreed by the Commissioner), a certificate from an appropriately qualified medical practitioner. That certificate should certify that Mr Wells' medical condition does not impact on his ability to form a rational judgement or to exercise willpower to control physical acts in accordance with rational judgement or in any other way impact on his ability to personally exercise continuous and responsible control over firearms. 37 It is my view that the correct and preferable decision in this matter is to set aside the decision of the Commissioner. In its place the decision should be made that Mr Wells' firearms licence is to be subject to that condition. Order 1. The decision under review is set aside. 2. The decision is made that Mr Wells' firearms licence is to be subject to the following condition: Mr Wells is to provide to the Firearms Registry, at six monthly intervals (or as otherwise agreed by the Commissioners), a certificate from an appropriately qualified medical practitioner. That certificate is to certify that Mr Wells' medical condition does not impact on his ability to form a rational judgement or to exercise willpower to control physical acts in accordance with rational judgement or in any other way impact on his ability to personally exercise continuous and responsible control over firearms. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.