Barrett v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 116

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Barrett v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 116

Hearing dates:

17 April 2024

Date of orders:

06 May 2024

Decision date:

06 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

(1) Decision under review set aside.

(2) A category A firearms licence is to be issued to the applicant.

(3) Such licence is to be subject to a condition to the effect that no firearm possessed by the applicant pursuant to such licence may be stored in any premises where Troy Barrett resides or frequents.

(4) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3 is prohibited.

(5) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

(6) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the applicant.

Catchwords:

LICENSING – firearms licensing – licence refusal – public interest – possessing ammunition while unlicensed – lost or stolen item – domestic arrangements.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11

Briginshaw v Briginshaw (1938) 60 CLR 336

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 41

Commissioner of Police, New South Wales Police Force v Arnold [2023] NSWCATAP 264

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

El-Chamy PSM v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 242

Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

Laughton v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 2

McDonald v Director-General, Social Security [1984] FCA 59; (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

R v Filippetti (1978) 13 A Crim R 335

Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Category:

Principal judgment

Parties:

Mr Phillip W Barrett (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2023/00361181

Publication restriction:

(1) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3 is prohibited.

(2) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

(3) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the applicant.

Reasons for decision

1. The applicant Mr Phillip William Barrett on 14 November 2023 applied to this tribunal for review of a decision by the respondent Commissioner to refuse his application for a category A firearms licence on public interest grounds.

2. The applicant had applied for the licence on 14 August 2023, and the application was refused on 22 August 2023. The refusal decision was affirmed following an internal review on 18 October 2023.

3. The applicant is a primary producer and truck operator aged 61 who has been intermittently licensed for firearms for a total of 26 years. In the early 1980s he had worked as a professional shooter.

4. Between 2004 and 2017 there had been domestic incidents reported as his residence at Mayfield Station, Booligal, involving the applicant’s (since separated) wife Cheryl, his daughter Ricki-Lee or Rikki-Lee [surname], his son Troy [surname) and Troy’s ex-partner, Hayley [surname]. Cheryl had at one stage obtained an apprehended violence order (AVO) against Ricki-Lee, but it does not appear that the applicant himself was primarily concerned in the incidents, apart from on one occasion pushing Troy and on another using insulting language to Hayley.

5. On 20 September 2019, police attended Mayfield Station to conduct a safe storage inspection, which ultimately found that a .177 airgun was unaccounted for, and detected several safe storage contraventions. His licence was consequently suspended on 24 September 2019 and on 23 September 2020 was revoked.

6. On 24 November 2021 police attended the applicant’s other address, at The Springs Road, Hillston (also known as Greentrees), to execute a search resulting from Troy’s being the subject of a firearms prohibition order (FPO) and weapons prohibition order (WPO). Before the search the applicant informed police that there was ammunition on the property, which he said was his and was left over from when he held a licence.

7. Police located and took possession of ammunition of several different types, some of which was unsecured and thus freely accessible by his son Troy. The applicant was later charged with possessing ammunition without a licence (his licence having been revoked at the time) and without conviction was made subject to a conditional release order (CRO), which expired on 22 September 2022.

8. The applicant reapplied for a category A licence on 14 August 2023, which was refused on 22 August 2023, the refusal being affirmed on 18 October 2023. On 14 November 2023 he applied for administrative review in this tribunal and Ransome SM on 14 February 2024 made certain confidentiality orders. The matter came on for hearing on 17 April 2024.

Applicable legislation

9. The Firearms Act s 11(3)(a) provides that a licence must not be issued unless “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”.

10. Section 11(4)(a) of the Act provides that the Commissioner must not issue a licence to a person “if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances”.

11. Section 11(7) states that “the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest”.

12. The issues in this case are:

1. whether the tribunal is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace;

2. whether the storage and safety requirements set out in Part 4 of the Firearms Act are capable of being met by the applicant, and

3. whether it is not in the public interest for the applicant to hold a firearms licence because of his association with family members who have extensive criminal histories.

The evidence

13. The respondent did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), certain confidential evidence and cross-examination of the applicant.

14. The applicant in oral evidence by AVL adopted his written statement dated 29 February 2024 (exhibit A1) in which he stated that his primary address is Mayfield Station, Booligal, where he has lived since he was aged seven. He also has other addresses: Lang Street, Hay, The Springs Road, Hillston, Molesworth Street, Hillston, and Moore Street, Hillston, which are all properties that he owns. Along with his three brothers he helps their mother [Mrs Gwenda Barrett] on the Mayfield property, she being in her 80s. He first obtained a firearms licence in the early 1980s.

15. In the 2000s he purchased a post office box in Hillston as the mail to Mayfield was unreliable and too many items went missing.

16. He operates a small transport business from Hillston and farms on various properties in the area, growing wheat and raising livestock. He has never had any criminal matters until charged with those ammunition charges that he feels were not his responsibility. He has never stored firearms at The Springs Road,, Hillston, so there had never been the need to have any ammunition stored there. In the early 2000s when he registered his firearms, he also put five rifles belonging to a friend in his name until the friend obtained his licence.

17. A domestic incident on 21 April 2004 was only a family argument that was escalated by the arrival of the police. Some time in 2007 – 2008 the rightful owner collected his .177 slug gun. He held a firearms licence for it and the back of the registration was filled in and signed. On 21 December 2009 police checked his safe and guns and all was well. At no time did they question that there was a firearm missing and not accounted for on the list. He assumed that the firearm had been successfully transferred to its owner.

18. The 28 February 2016 telephone call from Rikki was just her trying to stir up her mother. They have little conflicts all the time, but after a week or so they are good. He likes to stay out of it.

19. When he arrived in town on 11 January 2017 from Mayfield, Hayley turned up at The Springs Road when he was inside with his grandchild, Hunter, as his wife Cheryl was setting up sprinklers on the front lawn. Hunter said, “look, mum’s having an argument with nan”. They both went to the front door to listen, and he yelled out “That’s enough”. Hayley then started at him for not having the child back earlier. He did say to her “I don’t need to take this sort of language from a slut like you”, there was a reason he said that. He has since apologized and they are friends now. He is sure that Hayley would make a statement to verify this if required.

20. On 5 May 2018 he went to Riverina Hunting and Fishing at Griffith to purchase a new firearms storage safe. They advised him that they had none suitable and they were on the boat to Australia. On 30 June 2018 he returned to Riverina Hunting and Fishing to enquire about the safe and was told they had been lost at sea near Newcastle on 1 June as the ship had lost 81 containers. They said they would notify him when they had a suitable safe in stock. He was happy with the safe but thought a new shiny one would look better.

21. On 20 September 2019 police attended Mayfield Station without notice. Only A and B type firearms were there. His mother had been in the act of going to put down an old sheep at the shearing shed, so she had one rifle out. Police also found a belt containing some 12 gauge ammunition, which they took. When he asked Griffith police to return the belt because of sentimental value, it was discovered that both the belt and the ammunition had been lost by police and had not been entered into the Griffith police records. It was lost in police custody. Both his mother’s and brothers’ firearms were returned.

22. Sergeant Ryan telephoned him for the keys to his gun safe, but he was 380 km away near Condobolin and no-one else had the keys. Sgt Ryan was not pleased that he was wasting his time and said he would be back in two days to seize his firearms. The applicant asked why and his reply was “it didn’t suit his requirements as a safe firearms cabinet”. At no time can the applicant remember him saying that the police would come and inspect the cabinet.

23. On 24 September 2019 after speaking with Riverina Hunting and Fishing, and they still did not have a suitable safe, he decided to take all the firearms to them for safekeeping until he found a new storage cabinet. He felt that Sgt Ryan’s plan was to seize all his firearms. When the sergeant inspected the firearms and found that the slug gun was not there, he gave the applicant a notice of suspension, and on 20 September 2020 his licence was revoked on public interest grounds.

24. On 24 November 2021 police attended The Springs Road, Hillston. Sgt Ryan asked if there were any firearms or ammunition on the farm, and he answered “Yes there is one shotgun shell in the safe that he had found and he was waiting for somebody with a licence to collect it”. He did not know what could have been left over from the previous owner. There were locked containers, farm vehicles and boxes of stuff all over the farm, including inside the house. While searching the farm, police did find some other ammunition, but none of it was his. He did not see any of the ammunition except for the shell he gave them and what they said was black powder in an old flask. The powder, which he inherited from his grandfather, must have been very old because no-one can remember his grandfather owning a powder rifle.

25. He has never kept firearms or ammunition at any of the Hillston addresses. He did have a small firearms safe mounted in the office at The Springs Road, Hillston, but it only contained firearms cleaning products that he had received as presents.

26. His son Troy no longer resides at The Springs Road, nor attends at any of these addresses. He is in Sydney getting help for his drug problem at this point of time and has no interest in using or possessing firearms. When his charges are dealt with, he has made arrangements to reside and work at a farm at Gunbar, New South Wales.

27. The applicant has since completed and passed an advanced course of study on firearms ownership, possession and use. He found it very educational and it brought him up to date on all his responsibilities of holding a firearms licence, their use, safety and legal requirements. The course also explained that he was not legally responsible for the ammunition found at The Springs Road. As he was not living there permanently he had no control over who comes and goes and what is in other people’s assets that had been left there. He has since learned that he was misrepresented on the charge of holding ammunition without a firearms licence and it should not have been found proven. He was, however, without conviction placed on 6-month CRO, ending on 22 September 2022.

28. He applied to be appointed as a local justice of the peace in August 2023, but was declined only on the ammunition charge CRO. It was the only thing he has been charged with in 61 years and he feels that he was not guilty. He feels that being appointed as a JP could benefit his outback community. He would love to be able to be of help here as most people who are justices of the peace are getting on. He also quietly supports the local Hillston show committee and the kids’ football clubs.

29. In oral evidence in chief by AVL he explained that his primary address is Mayfield Station, near Hay, and has been since 1970. His firearms were stored there. He had purchased the property at The Springs Road, Hillston, in 2021. Mayfield Station extends over some 40,000 acres. His mother lives in the main homestead and there is a new house 50 m away. His guns were stored and locked in a shed near the house. His three brothers come and go to help, and the property employs a rural worker, Troy Lockman (not to be confused with his son Troy). The property at The Springs Road is about 100 acres and is also known as Greentrees.

30. In cross-examination he said that he had not been at Mayfield Station when the September 2019 safe storage inspection had been carried out, as he was at Hay or Condobolin with a load of grain. He had been on his way home but Sgt Ryan would not wait. His mother (Gwenda), his wife Cheryl (since separated), Troy and his niece Sarah were there at the time. His brother Daryle comes and goes to help. The applicant and his wife have four children, Ricki, Christy, Danielle and Troy. The children formerly lived at Mayfield Station, but now only his daughter Danielle, a pastures protection ranger, still lives in the area. Christy is at Mildura, Ricki at Hay, Danielle at Hillston and Troy in Sydney.

31. Firearms belonging to Gwenda and Daryle were stored in three safes in the old house. The applicant’s had been kept in another safe, 50 m away. One of Gwenda’s safes was open at the time as she was putting down an old sheep. She had said she had stored a firearm in her bedroom, but that was only because she was putting down the sheep. The office door had been locked and had only been open on that occasion. His own safe had been passed by two safe storage inspections, but if he obtains his licence he will replace it.

32. His trucking business operates around Hillston and serves to supplement his income as the return from the properties is not always sufficient. He transports animals and crops, and owns the only stock crate in the Hillston area. He had not held a collector licence but had told police that he collected firearms, because three of them had belonged to his grandfather. When he returned home he took his firearms to the dealer, but the airgun, which belonged to Stephen George and was returned to him was found to be missing. He had returned it in the late 2000s but the 2009 safe storage inspection did not identify it as missing. He last spoken to Stephen George about the airgun in about 2019. Mr George could not recall getting the gun back.

33. The applicant had registered five of Stephen George’s guns in his name. He had not said that he had given the airgun back to him, as Mr George had taken it back with the registration papers. The gun didn’t work but had sentimental value as it had belonged to his father. In 2019 he had not thought that the airgun was registered in his name as he believed it had been transferred out of his name.

34. In November 2021 police had come to The Springs Road, Hillston, in connexion with Troy’s FPO. He had purchased that property, known as “Greentrees”, after his licence had been revoked. His practice was to sleep either at Mayfield or Greentrees, as was also the case with Troy. He would spend 50 percent of his time at Mayfield, 30 percent at Greentrees and 20 percent elsewhere. Danielle visited from time to time.

35. When police had attended at Greentrees on 24 November 2021 to conduct a search in connexion with Troy’s FPO and WPO, he had told them that he had one shotgun shell, in the safe, but the search found much more ammunition. He had said the rounds were left over from when he had a licence but that was not correct. He did not know that they were on the farm and did not tell the police that he owned them. Nevertheless he was summonsed and received a six-month CRO. He may have pleaded not guilty but he was not sure, and he was found guilty.

36. He did not know the ammunition was there, had never seen it and did not know where it had been found, but the police did find it and it was not in the safe. He had never seen the black powder in the old powder horn. He did not store any of his guns or ammunition at that property. He had been in possession of one shell but he was blamed for the rest, although he did not say they were his. The previous lessees had left boxes there. He had purchased the property in January 2021 and began storing vehicles there from mid-2019. No-one lived there, and people would come and go.

13. He had gone to court once but could not recall whether or not he had pleaded guilty. He had simply sat up the back and did not give evidence. The proceedings were confusing as they were suddenly moved to another courtroom. If he had pleaded guilty, it was because he had been told to do so. The case took about a half-hour and he kept saying that the ammunition was not his, but was told that he had no proof of that fact.

14. In November 2021 he had lived at Greentrees on and off for about 18 months earlier. At that time Troy sometimes lived there, and there were also truck drivers staying there intermittently. He never saw anyone handling guns or ammunition and he has always respected firearms. The property at Molesworth Street is a house that he owns, which is currently in the process of renovation. Moore Street is a rented house.

15. He does not recall the last time he saw Christy, but he did not see her at Christmas, so it would be 12 months ago. In Ricki’s case it was 18 months since he had seen her. He had last seen Troy in September 2023, but last communicated with him via text on the day of the hearing. Troy is currently in rehabilitation and he does not know when he will be leaving that location. When he comes out he will work in an excavator business at Griffith whose owner he already knows and has made arrangements with. Nobody goes to Mayfield Station, which is 180 km away. He has told Troy he cannot live where guns are stored while he is subject to an FPO.

16. The applicant needs a firearm because the property is large and is subject to ferals, including deer and pigs. He needs it for pasture protection and to be able to move from one farm to another. Since he has been without a licence, he has been able to obtain help from Danielle, who lives in Hillston, 5 km away from Greentrees. That will be difficult in the future as Danielle is a pastures protection ranger and is getting busier in her work. No animals are kept at Greentrees but at Mayfield there are some 5000 sheep and other stock.

17. There had been a gun safe at Greentrees, but he pulled it out last year. It had been there when he moved in and it was there also when police inspected the property.

18. In re-examination the applicant said there had been 40 guns stored at Mayfield Station, all in one large safe. It had been inspected several times and was made of 8 mm steel plate with reinforced hinges. Sgt Ryan said he thought it weighed less than 150 kg, but he did not weigh it, nor did he check to see if it was bolted to the building.

19. He had registered five of Stephen George’s guns in his own name in the late 1990s, as the new law was coming in and Stephen was still applying for his licence. He had transferred four of the guns and had signed back the registration for the airgun, on the understanding that he would take it to a dealer to process the papers. Next time he would not make the same mistake and would be sure to get legal advice. When Troy completed rehabilitation he would be living at Gunbar, which is near Griffith, full-time.

Respondent’s submissions

44. At the hearing the respondent adopted the written submissions filed on 21 March 2024 which, after setting out the facts and the applicable law, contended that the applicant had failed to comply with the Firearms Act’s safe storage requirements. He had held various firearms licences for approximately 23 years and must at all relevant times have been familiar with the legislation, including the strict requirements regarding registration and storage.

45. He had nevertheless contravened s 39(1)(b) by not preventing the loss or theft of a firearm, for which he was issued with a penalty notice, and also had possessed ammunition without holding a licence (s 65(3)), for which he was made subject to the CRO. In September 2019 he had contravened s 40(1)(d) by not storing ammunition, specifically 12-gauge shot gun ammunition, in a locked container of an approved type. His continued possession of ammunition at Greentrees occurred in circumstances in which he knew that he possessed it and yet failed to take any steps to surrender it. Licence holders must not only understand and comprehend the applicable guidelines and laws, but must also act in accordance with them. Contravention of the safe keeping requirements is a fundamental breach of the Act: Laughton v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 2, [84].

46. Consequently the tribunal could not be satisfied that the storage and safety requirements are capable of being met, or will be met, by the applicant and that there is virtually no risk to public safety if he is granted a licence.

47. Further, the applicant’s comments about the reasons for his finding of guilt and being subject to a CRO suggest that he misunderstands the seriousness of his offending and the nature of his obligations under the Act. Thus, he had said he only had a very old 12-gauge shell, when in fact the CRO arose as a result of his being found in possession of a large amount of ammunition of various calibres while unlicensed. On 24 November 2021 he informed police that there in fact was ammunition on the Greentrees property which he said was his and had been left over from when he had a firearms licence.

48. Moreover, his explanation for the missing airgun had changed over time. On 24 September 2019, he said he had lent it to Steve George a number of years previously, but on 31 March 2020 identified two possible scenarios, namely that it went missing from his Hillston property about 10 years ago, or that he had lent it to his friend Stephen about 10 years ago who did not return it. The respondent submitted that the applicant’s failure to notice the loss or theft of a firearm, for such a lengthy period, indicated his irresponsible attitude towards, in disregard for, firearms laws.

49. In addition, on 20 September 2019, he told police when questioned about the number of firearms he had that he collected them. But he had never nominated collection as a genuine reason, again illustrating his lack of understanding of, or disregard for, the statutory requirements.

50. The applicant had sought to alleviate the respondent’s concerns by obtaining a certificate issued by the Firearm Safety and Training Council Ltd, but while a step in the right direction, that does not negate the serious concerns raised, especially given his continued lack of insight into his own conduct.

51. The respondent’s other major concern was whether his domestic arrangements could compromise continuous and responsible control over firearms. His primary residential address is Mayfield Station, which was where he stored his firearms. But at least as at 24 November 2021, he resided at the Greentrees property.

52. His elderly mother, Gwenda, resides at Mayfield Station, and Troy resided at the Greentrees property, at least in November 2021, although the applicant now says that Troy no longer lives or attends at that address. But there is limited evidence before the tribunal regarding the specific domestic circumstances of the applicant.

53. His use and possession of firearms, particularly if stored at Mayfield Station or Greentrees, creates an unacceptable risk to the public, first because of his association with his son Troy, who is subject of an FPO and a WPO, and secondly his daughter Rikki Lee, who has been issued with an ADVO for the protection of her mother, Cheryl.

54. The applicant’s evidence that Rikki and Cheryl have “little conflicts all the time” gives rise to a concern that there will continue to be conflict situations which may or may not occur at the applicant’s residence. If he is granted a licence, his family members will be aware that firearms are stored at their residential address or the family farm at which they reside or frequent. The history of domestic violence involving the applicant and his family members gives rise to reasonable cause to believe that there will continue to be conflict situations at the applicant’s residence and that, in such a situation, he may not be able personally to exercise continuous and responsible control over his firearms and that an unlicensed person may handle one.

55. Further, it would not be in the public interest for the applicant to hold the licence, having regard to the matters outlined above. In El-Chamy PSM v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 242 the tribunal said “where an applicant associates with a person or persons who have significant criminal histories, that association may create a danger to public safety” (at [83]).

56. In oral submissions at the hearing the respondent reiterated those points and referred to the various versions about the missing airgun. The information about the applicant’s domestic arrangements was now dated and the persons mentioned were not now interacting. Troy had been living there in 2021 but is now in rehabilitation. He could, however, on completing rehabilitation, live with his family, as he had previously worked for his father. Danielle could help the applicant to deal with ferals and with sick or injured livestock. The respondent very properly acknowledged, however, that were a licence to issue to the applicant it could be made conditional on no firearms being stored in any location where Troy resides or frequents.

57. [NOT FOR PUBLICATION].

Consideration

Approach

58. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

59. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 59; (1984) 1 FCR 354, 357.

60. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3)(a) states that a licence must not be issued unless 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”. Section 11(4)(a) also provides that 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 the applicant’s way of living or domestic circumstances.

61. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 336 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 41, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

Fit and proper person

62. The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 11(3)(a) states that a licence must not be issued unless “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” or (s 11(4)(a)) the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.

63. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies:

The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

64. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

65. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC(GD) [2011] NSWADTAP 65, [37]; Smith, [30].

Safe storage requirements – (a) the missing airgun

66. The respondent’s case for affirming the refusal decision rests on two broad lines of argument: (1) that the applicant is not a fit and proper person to hold a licence as compliance with the Act’s safe storage requirements cannot be regarded as assured because of his repeated failures in the past to meet those requirements, and (2) his domestic arrangements create concerns about his ability to maintain continuous and responsible control over firearms.

67. The line of argument based on fitness and propriety rests essentially on two circumstances or episodes, (a) a missing Norinco .177 airgun and (b) the applicant’s possession of ammunition at Greentrees on 24 November 2021, at a time when his licence had been revoked.

68. The missing item was detected following a safe storage inspection conducted on 20 September 2019 at the applicant’s residence at Mayfield Station, where his mother Gwenda and his brother Daryle also lived and stored a total of 60 firearms at that time. Daryle and Gwenda’s firearms were stored in three steel cabinets, one of which was unlocked at the time. Gwenda produced a bolt-action .22 and said it was kept unsecured in her bedroom and living room (exhibit R1, p 42). Also living at the location were Troy [surname] (the rural worker) and Gwenda’s granddaughter Sarah [surname], aged 18, neither of whom was licensed. The applicant appears to have had no significant personal involvement in this aspect of the episode.

69. Gwenda and Daryle’s licences were suspended on the basis of failure to store firearms in accordance with s 40 (ibid.). Police then made enquiries about the 41 firearms belonging to the applicant that were also recorded as being stored at that address. Police were shown a cabinet in a shed near a transportable house at the property that was some 50 m from the main house. Sgt. Brett Ryan thought it appeared to weigh under 150 kg and as not being secured to the building. The applicant was not at the property at the time, but when police spoke to him by telephone he said he was at Lake Cargelligo and not in a position to attend the property to give the police access.

70. He also explained the substantial number of firearms he kept at the address on the basis that he collected them, but his licence was based on the stated reasons of recreational hunting and primary production, not collection. Police then told him that his licence should be suspended on the grounds that he lived a considerable distance from the property and was not able to exercise control over firearms, and his licence was not granted for firearms collection (id., 43). The licence was not actually suspended at that point, however.

71. He therefore took all his firearms to Riverina Hunting and Fishing at Griffith for safe keeping. On 24 September 2019 police attended the dealer’s premises in Griffith and sighted 40 firearms left there by the applicant, but he had 41 registered to him. The airgun was missing (id., 44). Police informed him that his licence was being suspended because he was not authorized for collection and because of his failure to comply with safe keeping requirements in respect of the Norinco airgun. All his firearms were then transferred to the dealer’s stock.

72. At the time he told police that he had loaned the airgun to Steve George in Hillston several years previously, but at the hearing he said that it belonged to Mr George and that it was one of the five firearms that he had registered in his name until Mr George was able to obtain a licence. Four of the items had been transferred back to him, but in the case of the airgun the applicant had endorsed the back of the registration papers and given them with the airgun to Mr George on the understanding that he would take them to a dealer to have the transfer registered. That was apparently not done and in 2019 Mr George could not recall having received it back. The applicant had also advanced some other hypothetical narratives

73. It might be suggested that on a large and busy country property where family, workers and truck drivers come and go and where a total of 60 actual firearms were stored, the whereabouts of an old non-working airgun could become neglected and uncertain. But the applicant’s explanation for its loss was unsatisfactory and he received a penalty notice in respect of the missing item (exhibit R2). He was not, however, charged with any offence.

74. The applicant acknowledges his failure to comply with the statutory requirements in relation to this matter and is adamant that he would not make the same mistake again. Next time, before he transfers a firearm, he said, he will obtain legal advice. In the course that he undertook and completed with the Firearm Safety and Training Council in December 2023, the Council CEO explained that “The course includes an examination of the issues that gave rise to the cancellation of your firearms licence and the knowledge and measures necessary to prevent any recurrence” (part exhibit A1).

Safe storage requirements –(b) unauthorized possession of ammunition

75. By 24 November 2021 the applicant and his son Troy were both living at Greentrees, which is the property from which the applicant operates his trucking business (exhibit R1, p 72). On that date Troy was arrested in relation to a domestic violence incident and while in custody was served with an FPO and a WPO.

76. That afternoon police attended Greentrees to conduct a search of the residence for firearms. They told the applicant that Troy was in custody and had been served with the FPO and WPO, and that police intended to conduct a search of the residence for firearms and ammunition. Before the search began the applicant declared that there was ammunition on the property. During the search he cooperated with the searching police and said the ammunition was his and had been left over from when he had a licence (exhibit R1, p 64).

77. Police located a considerable amount of ammunition in several different calibres as well as black powder and a number of other items. His licence was suspended on 24 September 2019 and revoked on 23 September 2020 (id., 65). He was charged with possessing ammunition without holding a licence in breach of s 65(3) of the Act (as his licence by then had been revoked). On 23 March 2022 he was found guilty of the charge and without conviction sentenced to a CRO for six months concluding on 22 September 2022.

78. The respondent points out that while in his written statement the applicant claimed that “I have never stored firearms at **** The Springs Road, Hillston, so there has never been the need to have my own ammunition stored here” (exhibit A1, p 1), he told police that there was a shotgun shell in the safe as he was “waiting for somebody with a firearms licence to collect it and that [he] didn’t know what could have been left over from the previous owner and contractors that had been using this farm”. But he told responding police on 24 November 2021 that there was ammunition on the Greentrees property which was his and had been left over from when he had a firearms licence (exhibit R1, p 64).

79. At the hearing the applicant repeatedly denied that he had said the ammunition was his or that it had been left over from when he had held a licence. He was not sure if he had pleaded not guilty at the hearing on the summons, but he had been found guilty. He had not known that the ammunition was there and did not see it when the police found it, nor did he know where they had found it. He had never seen black powder of the kind found in the old horn.

80. In November 2021 he had been living at Greentrees on and off for about 18 months. During that time Troy sometimes lived there, as did a number of truck drivers. He never saw anyone handling guns or ammunition, and he has a deep respect for firearms.

81. In light of those circumstances, Mr Kable submitted, the prosecution might not have been able to show that the ammunition had been in the applicant’s possession, and not that of any of the other people living at or frequenting Greentrees, and could have been similar to cases of innocent possession of drugs: R v Filippetti (1978) 13 A Crim R 335.

82. He did not recall pleading guilty, but he had sat up at the back of the courtroom and was not clear on what was happening, especially as the proceedings were abruptly interrupted and sent to another courtroom. He kept saying that the ammunition was not his, but was told that he had no proof of that claim. The case only took about a half-hour, and if he pleaded guilty it was because he had been told to do so.

83. While it is open to an applicant to argue that he or she was wrongly convicted (Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, [63]), in the absence of clear evidence the finding of guilt and the underlying facts must be accepted, especially when there has been a plea of guilty recorded. On the other hand, the lightness of the penalty imposed, a six-month CRO, indicates that the court thought the applicant’s offence lay at the lower end of the scale of culpability.

84. As was noted above, the applicant on 7 December 2023 completed a course conducted by the Firearm Safety and Training Council which included a specific examination of the issues that gave rise to his licence revocation and the knowledge and measures necessary to prevent any recurrence.

The references

85. There are also several character references. Ms Sally Francis on 2 December 2023 wrote that she has known the applicant as a family friend for over 20 years as a good, hard-working family man who has always been an upright character in the community. She has seen him using firearms and he is the ultimate professional around firearm safety and she never felt he handled firearms in an unsafe manner, always conscious of those around him and the environment while using firearms. He also supports local sports club and during the recent floods donated his truck and workers in aid of supplying locals in need with sandbags. Ms Francis worked with his ex-wife and is aware of the issues within their family, and categorically says Philip is the most patient and calmest man she knows, by whom she has never felt threatened. He has also taken young teenagers under his wing and given them work experience, working with sheep and cattle also doing tractor driving on various places he runs his stock or crops the land.

86. The mayor of Carrathool, Cr Darryl Jardine, on 2 December 2023 wrote that he has known the applicant for over 20 years. Cr Jardine is a farmer and has lived in the Hillston district all his life and has been a councillor on Carrathool Shire Council for 19 years and mayor since 2019. He has used Barrett’s Transport many times and has found Philip to be reliable, honest and professional. He is a self-made, hard-working man but still has time for anyone that needs a hand. He supports local sport and during the extensive floods last year worked with the SES and delivered sandbags with his truck, helping those in need.

87. Philip had expressed his disappointment in himself over the missing slug gun and is ashamed that the incident had occurred. In his farming and grazing activities a firearms licence is essential to control vermin and humanely dispose of sick or injured stock. Vermin such as feral pigs and foxes can cause animal husbandry issues during the year, especially at lambing. Shooting these feral animals is the only effective way to minimize their destructive impact. Knowing Phil over many years, he believes that if he were to hold a licence then he is of no threat either to himself or to the public. The incident that led to his licence being revoked was completely out of character.

88. Mr Lloyd Johnstone’s reference dated 5 December 2023 explains that Philip had made him aware of the charges against him. Mr Johnston has personally known Philip for 4½ years, both professionally and personally as a friend through his transport and contract farming businesses. Throughout that time, he has found him to be of good character, mature, responsible, reliable and of a gentle disposition. Furthermore, he would not find him to present any danger to the public’s safety by holding such a licence and firearms.

89. Having been a farmer for 40 years, Mr Johnston believes that a firearms licence and owning firearms are a necessity for the activities of his farming business and that not having access would further be detrimental to the operation of such business, in particular to the control of feral animals in the Booligal – Hillston farming districts. In addition, it is an important requirement to also care for the animals he farms that he is able to humanely euthanize any livestock that may be critically injured or diseased.

90. Mr Ron Mulcahy JP, stock and station agent, has known the applicant for 15 years as a man of sincere and honest character. He has worked alongside him in the past 5 years driving his trucks, and his manner and respect to others are of a high standard. He supports Philip’s licence application and believes he should hold it in order to keep vermin off his property. He can only recommend him as his character is second to none and he has a transport business which he runs efficiently.

91. Mr Matt Taylor of Taylor Livestock and Property, Hillston, has personally known Philip for about 15 years. Throughout that time he has interacted with him daily, weekly and monthly. Those interactions related to his livestock sales, transport for other clients, livestock, grain, hay and occasionally for real estate transactions. Throughout those interactions he has found Phil to be loyal, professional, trustworthy and at all times hard-working. Until recently, he had been unaware that Phil had lost his gun licence. He is sure that Phil finds it challenging to perform day-to-day farm duties without firearms, particularly given the outbreaks of feral pigs and foxes in the Western Division. Mr Peter Leonard of Mount View Pastoral Company, Mount View Station, Hillston, writes that the applicant is very well thought of and highly respected in their community and is of excellent character. None of the referees was required for cross-examination.

Fitness and propriety – conclusion

92. As regards the missing airgun, the applicant was not charged with any offence for the safe storage and reporting contraventions but was issued only with a penalty notice (exhibit R2), which suggests that the matter was not viewed as being of particular gravity at the time. The applicant has expressed remorse about the incident and has emphasized that he would never attempt to transfer a firearm in that way again. He has completed an advanced safety course with the Firearms Safety and Training Council, which added specific instruction about avoiding the kind of contravention that gave rise to the penalty.

93. There are conflicting accounts of the facts and circumstances leading to his 6-month CRO for possessing ammunition at a time when his licence had been cancelled, and he is adamant that the ammunition did not belong to him but more likely to one of the other people who had been living at, or frequenting, Greentrees during the relevant period. But he is reported as specifically saying at one point that there was ammunition at the property left over from when he had a licence and he is recorded as having pleaded guilty, a result consistent with his description of how the proceedings unfolded, even though he maintains that he did not so plead, at least knowingly. In the absence of strong evidence, which was not forthcoming, the tribunal is bound to accept as established the basic facts on which the CRO rests.

94. On the other hand, the leniency with which the ammunition possession charge was dealt suggests that the court viewed it as lying towards the lower end of the scale of culpability. Further, the applicant has tendered strongly supportive and unchallenged references from primary producers and other established people in the area. Three of them, Ms Sally Francis, Cr Jardine, mayor of Carrathool, and Mr Lloyd Johnstone specifically refer to his safety-conscious attitude to firearms use and handling.

95. The applicant is a man aged 61 who runs a farming and grazing property and a successful trucking business operating in the Hillston area. He has no history of violence, other than some pushing of Troy on 21 April 2007, or of threatening violence. He has no history of drug or alcohol abuse or of mental health problems and no record of encounters with the criminal justice system other than the 6-month CRO on the ammunition possession charge. During the 23 years he has held firearms licences, there have been no reports of his using firearms in a careless or inappropriate manner.

96. When previously licensed he passed several safe storage inspections without incident. He undertakes to obtain a new, complying firearms safe should he be granted a licence once more and has in the past made arrangements with a gun dealer in Griffith to obtain one. There is good reason to believe that he will in the future comply with the statutory safe storage provisions, and I so find.

97. Viewing the evidence as a whole, including his high community standing and his reputation for safety in firearms use, in my view the applicant is a fit and proper person to use and possess firearms, and I so find.

Domestic arrangements and public interest

98. The respondent’s other principal line of argument was that a history of domestic disputes involving the applicant’s family, and the criminal history of some of them, precluded the grant of a firearms licence to the applicant. Section 11(4)(a) of the Firearms Act creates a mandatory ground of licence refusal where the Commissioner (and on review this tribunal) has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.

99. Further, as Mr Roberts pointed out on behalf of the respondent, in El-Chamy PSM v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 242, [83] the tribunal declared that “where an applicant associates with a person or persons who have significant criminal histories, that association may create a danger to public safety”.

100. The respondent referred to an incident on 21 April 2007 involving the applicant’s son Troy arguing with the applicant and Danielle, with interventions by Cheryl. Police were called, leading to Troy’s agreeing to leave the scene and the applicant being given a warning about hindering police. No further action was taken.

101. On 28 February 2016 the applicant’s daughter Rikki was made subject to an ADVO for the protection of Cheryl (her mother, the applicant’s wife). On 11 January 2017 there was another incident, this time involving Hayley, Troy’s former de facto, over custody of their child, which led to a heated argument in which the applicant used insulting language in reference to Hayley following Troy’s arrest and the breakdown of their custody agreement.

102. The respondent submitted that the applicant’s use and possession of firearms, particularly if stored at Mayfield Station or Greentrees, would create an unacceptable risk to safety. Those risks arose out of the applicant’s association with Troy, who is the subject of the FPO and WPO, and his daughter Rikki, who has been issued with an ADVO for the protection of her mother, Cheryl. The applicant’s evidence that Cheryl and Rikki have “little conflicts all the time” gave rise to a concern that there would continue to be conflict situations that might or might not occur at the applicant’s residence.

103. Further, the respondent contended, if the applicant held a licence, his family members would know that firearms were stored at their residential address or at the family farm at which they reside or frequent. The history of domestic violence involving the applicant and his family gave reasonable cause to believe that there would continue to be conflict situations at the applicant’s residence, and that in such a case the applicant might not be able personally to exercise continuous and responsible control over his firearms.

104. The respondent acknowledged that the domestic violence reports mentioned above were now dated. During the relevant period, the applicant’s four children (Rikki, Christy, Danielle and Troy) and his now separated wife Cheryl had lived at Mayfield, but the respondent did not dispute that Christy is now living at Mildura, Rikki at Hay, and Troy is in Sydney undergoing rehabilitation. Only Danielle, the pastures protection ranger, now lives in the area, residing at Hillston.

105. The respondent remains concerned, however, that when Troy completes rehabilitation he could decide to live with the applicant once more, although the applicant believes he will be working for an excavation business at Gunbar, near Griffith, and will be living there. The respondent also adduced confidential evidence on this issue.

106. [NOT FOR PUBLICATION].

107. [NOT FOR PUBLICATION].

108. [NOT FOR PUBLICATION].

109. [NOT FOR PUBLICATION].

110. In relation to the public interest issue, the Appeal Panel in Commissioner of Police, New South Wales Police Force v Arnold [2023] NSWCATAP 264, [74] – [75] had this to say:

The question is whether there is in all the circumstances a real and appreciable risk to the public if the person has access to firearms: see Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32]; Rial at [32]. These considerations have been held to apply to the assessment of both a person’s status as a fit and proper person and the public interest: see Masterson v Commissioner of Police, NSW Police Force [2017] NSWCATAP 206 at [130] – [134].

The public interest test involves, but is not limited to, looking at the Respondent’s conduct and not the fact of the conviction or otherwise: Joseph v NSW Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] – [64]. It has been repeatedly stated that “in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence where there is no misuse of a firearm”: see Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [103] cited in Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60].

111. For the reasons given above in relation to fitness and propriety and safe storage, the evidence does not show that the applicant’s possession and use of firearms would now create any real and appreciable risk to public safety, as understood in Arnold. Further, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry.

112. The respondent acknowledged that the reports of incidents at the applicant’s residence involving his children and spouse are now dated. Neither his children nor his wife are still residing with him. The main concern now relates to Troy, who is currently undergoing rehabilitation in Sydney but when that program is completed could seek to reside with the applicant, as he has done before, notwithstanding that the applicant thinks he will be living and working at Gunbar, in the Griffith area. He also remains subject to an FPO and a WPO and should therefore not be residing at or frequenting any residence where firearms are stored.

113. I conclude therefore that the correct and preferable decision is to set aside the reviewable decision and order that a category A licence be issued to the applicant, but subject to the condition that no firearms may be stored at any premises where Troy resides or frequents, and I so order.

Orders

1. Decision under review set aside.

2. A category A firearms licence is to be issued to the applicant.

3. Such licence is to be subject to a condition to the effect that no firearm possessed by the applicant pursuant to such licence may be stored in any premises where Troy Barrett resides or frequents.

4. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3 is prohibited.

5. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

6. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the applicant.

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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: 06 May 2024