Artridge v Commissioner of Police NSW Police Force

[2021] NSWCATAD 188

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Artridge v Commissioner of Police [2021] NSWCATAD 188

Hearing dates:

1 April 2021

Date of orders:

7 July 2021

Decision date:

07 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

The decision to revoke the applicant’s Category AB firearms licence is set aside.

Catchwords:

ADMINISTRATIVE REVIEW – firearms dealer licence and personal licence – revocation – contraventions of Firearms Act - whether not in the public interest for applicant to hold the licences

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Bevan v The Commissioner of Police, NSW Police Service [2004] NSWADT 1

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cook v Commissioner of Police [2003] NSWADT 30

Cusumano v Commissioner of Police [2001] NSWADT 50

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124

Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98

Ward v Commissioner of Police [2000] NSWADT 28

Wiltshire v Commissioner of Police [2005] NSWADT 75

Category:

Principal judgment

Parties:

Kaleb Artridge (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/00221192

Publication restriction:

None

REASONS FOR DECISION

1. This is an application by Kaleb Artridge seeking review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Firearms Act) to revoke his category AB firearms licence. The decision to revoke his licence was made on 24 June 2020 and was affirmed on internal review on 23 July 2020.

2. The decision to revoke the licence was made on the basis that Mr Artridge has contravened provisions of the Firearms Act and that it was not in the public interest for him to hold a firearms licence. The decision followed on from the theft of four firearms belonging to Mr Artridge and issues raised during the subsequent investigation by police.

Background

3. Mr Artridge has held a firearms licence since 11 August 2006, the most recent of which was issued on 12 July 2016 and which was due to expire on 22 September 2021. The stated purpose of the licence is recreational hunting and vermin control. Prior to the incidents giving rise to this application, Mr Artridge had no adverse licensing history, nor does he have a criminal record.

4. On 7 August 2019 police attended a rural property in Wallengandra, NSW following a report by Peter Artridge, Mr Artridge’s father, that four firearms belonging to Mr Artridge had been stolen from a safe located in a shed on the property. The property was the current safekeeping address for all firearms owned by Mr Artridge. Peter Artridge had discovered the theft the previous night when he found the safe open with the key dangling from the lock. Mr Artridge was not at the property at the time.

5. Peter Artridge told police that it appeared the thief or thieves had located a set of keys which were stored out of sight in a magnetised container under a shelf in the shed. Police interviewed Peter Artridge who told them that Mr Artridge was working in Cooma. During conversations between police and Mr Artridge in Cooma he informed them that about three weeks earlier he had taken another gun safe and 15 firearms from the property to his partner’s property over the border at Alexandria in Victoria. At the time he was spoken to by police he had two of those firearms with him in Cooma and the remainder were in the safe at Alexandria.

6. All firearms belonging to Mr Artridge were seized and the firearms licences of Mr Artridge and Peter Artridge were suspended. Peter Artridge’s licence was later reinstated but that of Mr Artridge was revoked. No criminal charges have been laid against either Mr Artridge or Peter Artridge. The identity of the thief is not known and the four guns which were stolen have not been recovered.

The application for review

7. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act).

8. Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a firearms licence.

9. The Commissioner argues that it is not in the public interest for Mr Artridge to hold a firearms licence for the following reasons:

1. he has contravened safe storage provisions under the Firearms Act;

2. he failed to notify the Commissioner of his safe storage addressed as required under the Firearms Regulation 2017;

3. he failed to assist police with investigations into the theft of four of his firearms; and

4. he has been using his firearms for purposes other than in connection with the purpose established by him as the genuine reason for possessing or using firearms.

10. Mr Artridge rejects all bar one of the contentions of the Commissioner and states that there is no risk to the public in him possessing a firearms licence and that the decision under review should be set aside.

The relevant law

The Firearms Act

11. Two of the underlying principles of the Firearms Act are:

1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

2. to improve public safety:

1. by imposing strict controls on the possession and use of firearms, and

2. by promoting the safe and responsible storage and use of firearms.

12. Additionally, the Firearms Act’s objects include:

• to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and

• to ensure that firearms are stored and conveyed in a safe and secure manner.

13. Sub-section 39(1) of the Firearms Act provides that a person who possesses a firearm must take all reasonable precautions to ensure:

1. it’s safe keeping, and

2. that it is not stolen or lost, and

3. that it does not come into the possession of a person who is not authorised to possess the firearm.

14. In relation to the holder of a category A or B licence s 40 of the Firearms Act provides that the holder must:

1. store any firearm in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, when the firearm is not actually being used or carried (s 40(1)(a)); and

2. if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal (s 40(1)(b).

15. Clause 17(3) of the Firearms Regulation 2017 requires a licence holder to notify the Commissioner in writing (or in such other manner as may be approved) if there is any change in the address of the premises at which the licence holder keeps any firearm. The notice must be given within 14 days after the change occurs and must:

1. specify the address of the new premises on which the firearm is to be kept when not actually being used, and

2. specify particulars of the arrangements that have been made by the licence or permit holder for the safe keeping and storage of the firearm on those premises, and

3. certify that those arrangements comply with the requirements of the Act and this Regulation concerning the safe keeping and storage of the firearm.

16. Section 24 of the Firearms Act sets out the circumstances in which a licence may be revoked. It relevantly provides:

“24 Revocation of licence

…

1. A licence may be revoked:

   (a)   for any reason for which the licensee would be required to be refused a licence of the same kind, or

   (b)   if the licensee:

   (i)   supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

   (ii)   contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

   (iii)   contravenes any condition of the licence, or

   (c)   if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

   (c1)   if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

   (d)   for any other reason prescribed by the regulations.”

   17. For the purposes of s 24(2)(d), clause 20 of the Firearms Regulation provides:

“The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.”

18. The Commissioner has identified the following grounds in support of his submissions that Mr Artridge’s licence should be revoked:

• because he has contravened the firearms legislation

• because four firearms were stolen through his negligence, and

• because it is not in the public interest for him to continue to hold firearms licence.

Contraventions of the legislation

19. It has been consistently stated that the legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117]. As noted above, the licensee need not be convicted of any offence for a contravention to be found: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] – [64].

20. It is it is not the Tribunal's role to consider whether a licensee’s actions amounted to criminal behaviour and it is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

The public interest

21. What is meant by the term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.”

22. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

23. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

24. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:

1. …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.

2. 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.”

   25. That case dealt with whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] – [134].

   26. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco vCommissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

   27. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

Evidence and findings

28. Mr Artridge provided a statement gave evidence at the hearing and was cross-examined by the Commissioner. For his part, the Commissioner relied upon a statement of Detective Senior Constable Michael Smith dated 28 January 2021 and copies of body worn video of police attendance at the Mullengandra property on 7 August 2019, including police interactions with Peter Artridge, and discussions between police and Mr Artridge at Cooma on the same day.

Failure to store firearms safely/negligence resulting in theft

29. It is accepted that four firearms owned by Mr Artridge were stolen from a gun safe at the Mullengandra property on 6 August 2019. It is also accepted that the guns were stored in a safe located in a shed within line of sight of the house on the property.

30. Senior Constable Smith states that when police attended the property, they found that the keys to the safe were in the safe door. The body worn video shows that police were informed by Peter Artridge that there was a set of keys for the safe in the house and another was housed in a magnetic container which is usually attached to the underside of a bench out of sight. He said that when he went to the shed on the night of 6 August 2019 he had found the container lying on top of the bench and the keys in the door of the safe. A COPS report by Senior Constable Russell Morris on 7 August 2019 states that the shelf to which the container was attached is about 50 cm off the ground and the underside cannot be seen by a standing person. Peter Artridge told the police that the magnetic box housing the keys was moved around from to time.

31. Mr Artridge acknowledges that the firearms were stolen and states that the premises were ransacked and that the keys to the safe, which had been secreted, were located allowing the thieves access to the safe. He states that he took all reasonable precautions to prevent the theft of firearms. The Commissioner states that Mr Artridge’s statement that the shed had been ransacked is not corroborated by any evidence or supported by attending police who observed that the safe was undamaged. I note, however, that following his attendance on 7 August 2019, Senior Constable Smith stated that the shed was messy with various items on the floor and benches throughout. I also note that there is no evidence before me of the state of the shed before the arrival of police on 7 August 2019 and it does not appear that either Mr Artridge or his father were questioned by police about whether items in the shed (other than the key box) had been moved.

32. The Commissioner states that the fact that the keys were found in the lock indicates that either they were left in the lock or had been located by the thief or thieves. The Commissioner further submits that it would take a person a long time to locate the hidden keys if the person was unaware of their location and implies that the thief must have been aware of their location. The Commissioner also criticises the location of the safe in an open shed.

33. Peter Artridge had told police that he and his wife from time to time have assisted troubled youth who came to spend some time on their property, although indicated that there had not been any such young person there in recent times. The Commissioner states that the failure to take precautionary measures by also securing the safe and secreting it in a less visible area arguably resulted in the location of the firearms being known to thief, enabling them to more easily steal the firearms. The Commissioner implies that this situation was exacerbated by the fact that the Artridges assisted troubled youth.

34. When they attended the Mullengandra property, police formed the view that the gun safe, which was sitting unsecured on a wooden pallet, should have been secured to the floor or part of the structure of the shed. Senior Constable Smith states that he took hold of the top of the safe and could easily tip it forward.

35. The safe storage at the Mullengandra property was last inspected on 7 August 2012 at which time it was found to be compliant. The COPS report of the inspection records that the safe was located in a machinery shed on the property. When speaking with police on 7 August 2019 Peter Artridge said that he believed the safe had been in the same location for about 15 years.

36. Mr Artridge states that the safe did not need to be secured to the floor as it weighs more than 150 kg when empty and was only for the storage of Category AB firearms. He provided a weighbridge certificate for the safe dated 8 August 2019 which states that the safe was empty and weighed 180 kg.

37. Section 39 of the Firearms Act provides that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping. The Commissioner states that Mr Artridge’s safekeeping failed to such an extent that that thieves had access to the contents of the safe and stole four firearms. The Commissioner contends that, due to Mr Artridge’s negligence, I can be satisfied that he contravened s 39 by not taking all reasonable precautions to ensure the safe keeping of his firearms and that they were not stolen. Mr Artridge submits that he had taken all reasonable precautions to prevent the theft of his firearms.

38. Failing to meet safe storage requirements for firearms as imposed by the Firearms Act is a significant contravention as these provisions are fundamental in their nature and go to the heart of the principles and objectives of the legislation (Bevan v Commissioner of Police [2004] NSWADT 1 at [26]). In this matter, the firearms were stored in a gun safe in a shed which was within the line of sight of the home. The keys were secreted in a container which, as noted by police, was not visible to anyone standing in the shed and there is no evidence that its location was known to anyone other than Mr Artridge and Peter Artridge. The Commissioner has indicated that the safe location and the arrangement with the key were unsatisfactory but I note that the arrangement has been in place for some 15 years without incident and was approved by police in the past.

29. It is concerning that the identity of the thief or thieves is not known and the firearms have never been recovered. The Commissioner sought to draw an unfavourable inference from the fact that the Artridges have in the past assisted troubled youth who spend some time on their property. There is no evidence, however, that this fact had any bearing on the theft.

30. In relation to the fact that the safe was not secured to the floor or any other part of the shed structure, in my view it is not open to the Commissioner to submit that this is a failure to comply with safe keeping requirements when the legislation specifically states that a safe weighing more than 150 kg and which is used for the storage of category AB firearms does not have to be so secured. There is therefore no contravention of the legislation in this regard by Mr Artridge. At the hearing the Commissioner acknowledged that there was no breach but again suggested that the safe should have been secured. However, there is no indication that the fact the safe was not secured to the floor or structure played any part in the theft.

31. There is also no evidence that the safe was left unsecured at any time or that the firearms were not in a locked safe at the time of the theft. I agree with Mr Artridge that the mere fact that the keys to the safe were located and his firearms were stolen does not of itself lead to an inevitable conclusion that he has not taken reasonable precautions to prevent the theft of the firearms.

32. On the basis of the evidence before me the firearms were stored in an approved gun safe located within sight of the house and the keys were secreted in a container which was not visible to a casual observer. In addition, the key container was moved from to time in order to keep its location secret. It is clear that some effort would have been required to locate the container. Mr Artridge states that the shed was ransacked, a matter which the Commissioner disputes. There is no contemporaneous direct evidence one way or another on this point but I do note that the shed was described as messy by police on the day following the theft. While with hindsight it may have been more prudent to keep the keys elsewhere, that is not sufficient to establish that Mr Artridge has not taken all reasonable precautions to prevent the theft of the firearms. As he points out, he was the victim of a crime.

33. In light of the evidence, I am not satisfied that Mr Artridge has been negligent in regards to the safe storage of his firearms or that he has contravened the safe storage requirements of the Firearms Act

Failure to notify of change of safe storage address

44. On 7 August 2019 police from Berridale Police Station spoke with Mr Artridge at a property at Cooma where he was working. Mr Artridge told police that about three weeks prior to the theft of the firearms he had taken 15 firearms from the gun safe and, along with another safe, had taken them to a location in Victoria. At the time he was spoken to by police he had two of those firearms in his possession and the remainder were in the safe at Alexandria, Victoria.

45. Mr Artridge states that he leased a property in Victoria two or three years ago next door to his then partner. He said that he goes to the property for a few days or couple of weeks at a time and then returns to his parents’ place at Mullengandra. He said that as a primary producer he uses his firearms to humanely euthanise sick and injured animals as well as to control feral and pest animals.

46. Mr Artridge said that, in addition, he is a licensed game harvester in NSW and Victoria and his work as a game harvester is done at night. He said that he took the firearms from Mullengandra to Victoria to use as he was working down there and planned to take them back to Mullengandra when he was finished. He said that he took the safe down as it was better to store them in the safe when he was not working rather than in the back of his ute. Mr Artridge states that he took with him the firearms that he needed for his work in Victoria. When asked why he had taken 15 firearms, he said that different firearms are used for different purposes.

47. Mr Artridge states that at the time he was travelling between Cooma and other locations in NSW and Victoria as part of his employment as a game harvester. He said at the time he was spoken to by police, he had “ducked up” to Cooma to help a friend out and was to return to Victoria. He states that at no time did his residential or safe storage address at Mullengandra change, but that the nature of his work meant that he would often leave home for periods of time. He submits that while he was travelling and engaging in his work as a contract harvester, his firearms were being conveyed and used in accordance with the provisions of the Firearms Act and Regulation.

48. Mr Artridge states that when not actually being used on this work trip, his firearms were safely stored in a compliant safe (rather than in his vehicle) as it was impractical for him to drive back hundreds of kilometres to his residence in Mullengandra only to drive back again the next day to continue with his work. He submits that the fact that his guns were stored overnight does not mean they were not in use whilst he was engaging in his employment. He states he has never changed his place of residence and compared his working arrangement to someone going on a three-week hunting trip.

49. Section 40 of the Firearms Act provides that when a firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner. Clause 17(1) of the Firearms Regulation requires a licensee to notify the Commissioner of the address of the premises on which a firearm is to be kept when not actually being used. Under cl 17(3) the Commissioner must be notified of any change in such an address within 14 days of the change. At issue is whether there has been a change in the storage address for Mr Artridge’s firearms.

50. The Commissioner states that the evidence in relation to this issue is unclear and that the better view is that Mr Artridge moved his firearms to a new address around 14 July 2019 and was therefore required to notify the Commissioner of the change. The Commissioner states that Mr Artridge’s evidence indicates he spends considerable time at the property and the fact he moved a gun safe there from Mullengandra points to the fact that the guns had been relocated to a new storage address.

51. The standard of proof that applies in these proceedings is the civil standard, that is, the balance of probabilities. The Commissioner states that Mr Artridge spends a considerable amount of time in Victoria. The Commissioner also argues that the fact that Mr Artridge moved the gun safe to Victoria is a clear indication that he had moved his firearms to that location and was therefore required to notify the Commissioner within 14 days of the new safe storage location.

52. There is, however, little evidence as to how often Mr Artridge goes to his property or works as a harvester in Victoria. There is no other evidence that would indicate that he has changed his primary residence to his property or any place other than his parents’ farm in Mullengandra. While a change in residence is not determinative of whether a safe storage location has been changed, it is likely to be an indicator of such. It is also not clear from the evidence whether the gun safe that Mr Artridge took to Victoria was in fact used for storage at Mullengandra prior to being moved. The only evidence in this regard is the statement made to police by Peter Artridge on 7 August 2019 that, before Mr Artridge had removed the firearms, the safe from which the four firearms had been stolen was “pretty full”. If the safe had been used to store the guns that were taken to Victoria, that may be an indicator that the safe storage address had changed. It is not possible to make such an inference on the state of the evidence in this case. Indeed, the only evidence is that given by Mr Artridge that he took the safe to Victoria while he was working there as he felt this was safer than storing the firearms in his ute as it was too far to drive back to Mullengandra each day.

53. The evidence of Mr Artridge is that he took 15 firearms to Victoria. This would appear to be a significant number but the only evidence as to why he took so many firearms with him was his evidence that he uses different firearms for different purposes in his work. That evidence was not challenged, nor was his evidence that he intended to return the firearms to Mullengandra when his work was finished.

54. Mr Artridge has provided a coherent and plausible explanation for why he took 15 firearms and a gun safe to Victoria as he was using these firearms in the course of his work for a period of several weeks. I accept his explanation that he was in Cooma (and not Victoria) on the day he was questioned by police as he went there to help a friend but was going back to work in Victoria. Indeed, this statement was not challenged by the Commissioner. On balance, I accept that Mr Artridge was using the firearms in the course of his work during the relevant period and that he had not moved those firearms to Victoria so as to require him to notify the Commissioner of a change in the safe storage address.

Failure to assist police

55. The Commissioner contends that the failure by Mr Artridge to assist the police in their investigations has arguably contributed to four firearms remaining outstanding in the community.

56. Peter Artridge notified police as soon as he became aware of the theft on the night of 6 August 2019. He told police he immediately contacted his son and they both made numerous phone calls to family and friends in an attempt to gain information about the theft but to no avail. The body worn video evidence shows that Peter Artridge was cooperative with police when they attended the property on 7 August 2019. I note he was cautioned during his discussions with police at his property on 7 August 2019.

57. Peter Artridge attended Albury Police Station on 8 August 2019 where he was again cautioned by Senior Constable Smith and subsequently declined to answer further questions. He has not been charged with any offence.

58. Senior Constable Smith states that he asked Mr Artridge to make a formal statement, but he declined to do so. Mr Artridge states that he attempted to attend Albury Police Station on 8 August 2019 but was advised by Detective Constable Smith that he had to leave early to pick up his children. Mr Artridge stated that, after his father was arrested by police and he was asked to attend the station to be interviewed, he sought legal advice following which he declined to make a statement. He also stated that when he was spoken to by police at Cooma he was cautioned and continued to speak with them, although declined to answer some of their questions. He states that he has not been uncooperative with police and has continued to be in contact with police.

59. Mr Artridge notes that the caution he was given was the standard caution used by police when they are interviewing a suspect for an offence. He submits that, in refusing to answer some questions asked of him, he was exercising a right that had been offered to him by the police when he was cautioned.

60. The Commissioner accepts that Mr Artridge was acting on legal advice, but states that he could have been more cooperative with police by providing further information about the firearms located in Victoria. Police report that the scant information provided by Mr Artridge required them to make inquiries elsewhere to determine that no firearms remained in his possession. The body worn video of the discussion between police and Mr Artridge in Cooma in fact indicates that Mr Artridge informed police that he had taken 15 firearms from the safe at Mullengandra and for what purpose. He also advised police of their location. From the questioning it appears that the police had difficulty understanding what he was telling them.

61. The Commissioner states that Mr Artridge’s lack of full and frank cooperation with police is not aligned with what is expected of a person who has been afforded the privilege of a firearms licence. Mr Artridge states that he did his best to answer questions honestly. In my observations of Mr Artridge during his interactions with police as seen on the body worn camera and at the hearing, I did not find him to be evasive.

62. Mr Artridge did refuse to answer some questions asked of him by police and did not attend an interview. He did so after being cautioned and, in relation to the interview, after his father had been arrested and after he had been given legal advice. His actions do not seem unreasonable and are in keeping with his legal rights.

63. From my observations of the body worn video, I do not consider that Mr Artridge deliberately hindered the police investigation in any way. I do not consider that either he or Peter Artridge failed to assist police and that that is why the firearms remain outstanding.

Use firearms for other purpose

64. Police attended the Mullengandra property on 5 June 2015 following a complaint by neighbours in relation to noise and allegations of unsafe firearms shooting. At the time police noted that Mr Artridge had been shooting clay targets when that was not a reason for obtaining his firearms licence. Mr Artridge said at the hearing he had shot clay targets to improve his skills and accuracy and acknowledged that this was not a genuine reason at the time for him possessing the licence.

65. During the course of the investigation into the theft, Mr Artridge told police that he was a primary producer and a professional game harvester and that he earned a living from these occupations. He is licensed by both the NSW and Victorian governments to harvest wild game. As noted above, Mr Artridge said that he has leased a property in Victoria for the past two to three years and spends some time there.

66. He acknowledged at the hearing that he had not advised the Commissioner that he is now a primary producer and a licensed game harvester. He said that he intended to notify of the change when his licence was up for renewal in September this year.

67. Under s 7A(2) of the Firearms Act a licence holder who uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, is guilty of an offence. I am satisfied that Mr Artridge has used his firearms for purposes other than that for which he is licensed.

Consideration

68. I have found the majority of the matters raised by the Commissioner are not proven at the required standard to be breaches of the legislation or matters going to the suitability of Mr Artridge to hold a firearms licence. In particular, I have not found that he breached safe keeping requirements which led to the theft of four of his firearms nor that he failed to notify the Commissioner of a change in his safe storage address. I have, however, found that Mr Artridge has contravened firearms legislation by using his firearms for purposes other than those for which he has been approved.

69. At issue, in light of those findings, is whether it is in the public interest for Mr Artridge’s to hold a firearms licence and whether the licence should be revoked. Mr Artridge submitted that his failure to notify the Commissioner of the additional reasons for possessing his firearms licence is at the lower end of any conduct warranting revocation of his license. He also submits that there would be no risk to the public in him being permitted to use firearms.

70. In McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 around [45] the Tribunal noted that the discretion allows the Commissioner, in the case of a person who already holds a licence, to consider the person’s licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme.

71. As noted above, Mr Artridge has held a firearms licence since 2006 and has no adverse licensing history. He states that he has never been charged by police with using firearms inappropriately and denies that he has ever done so. He also does not have a criminal record in respect of any offences against the law.

72. Mr Artridge’s contravention of the Firearms Act in not notifying the Commissioner of a change of use of firearms is not a trivial matter. It is evident, and readily understandable, that a purpose of the legislation is not only to control who may use firearms, but also to limit the purposes for which they may be used. There is, however, no evidence that any member of the public has been put at risk through his use of the firearms for primary production or game harvesting or by shooting clay targets in 2015. In addition, no adverse character information has been put before the Tribunal in relation to Mr Artridge.

73. I note that Mr Artridge has been without his licence for a period of almost two years. I have no doubt that the experience has reinforced with him the need to ensure that he follows all requirements in relation to his possession and use of firearms. In general, taking into account Mr Artridge’s prior conduct, his character and the fact that there is no suggestion that he has used firearms in a manner causing risk to safety, I am not satisfied that it is not in the public interest for Mr Artridge to hold a licence. I am also not satisfied that his contravention of the legislation in using his firearms for a purpose for which he was not approved should result in the revocation of the licence.

74. It follows that the correct and preferable decision is to set aside the decision of the Commissioner to revoke Mr Artridge’s firearms licence. The effect of that decision is that Mr Artridge’s Category AB firearms licence is reinstated and he is permitted to possess and use firearms for the genuine reasons of recreational hunting and vermin control.

Order

1. The decision to revoke the applicant’s Category AB firearms licence is set aside.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 July 2021