Chief Commissioner of Police v Paterson
[2023] VSC 172
•5 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 03465
| CHIEF COMMISSIONER OF POLICE | Appellant |
| v | |
| CAMERON PATERSON | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 February 2023 |
DATE OF JUDGMENT: | 5 April 2023 |
CASE MAY BE CITED AS: | Chief Commissioner of Police v Paterson |
MEDIUM NEUTRAL CITATION: | [2023] VSC 172 |
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APPEAL – Application for leave to appeal and appeal of VCAT decision – Firearm prohibition order – Whether Tribunal erred in law – Distinction between mandatory relevant considerations and other factual considerations – When error of fact becomes an error of law – Competing public interest considerations – When matters considered consecutively are later synthesised – Whether decision open – Victorian Civil and Administrative Law Act 1998 s 148 – Firearms Act 1996 s 112E.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms R Enbom KC and Ms F Batten | Victoria Police |
| For the Respondent | Ms M Szydzik SC and Ms R Singleton | Simon Parsons & Co Lawyers |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. The statutory test.......................................................................................................................... 2
C. The matters that gave rise to a concern and their context.................................................... 3
D. The Senior Member’s conclusions........................................................................................... 9
E. Did the Senior Member fail to have regard to the risk of Mr Paterson coming into possession of a firearm other than from his current circle?................................................................... 10
F. Did the Senior Member limit her considerations to conduct involving the use of firearms when determining whether it was in the public interest to make a firearm prohibition order? 12
G. Did the Senior Member overlook certain matters?............................................................. 16
G.1The ammunition in the stubby holder............................................................................. 18
G.2The letter............................................................................................................................... 19
G.3The torn shirt....................................................................................................................... 19
G.4The timing of the intervention order................................................................................ 20
G.5Mr Paterson’s psychological treatment and the failure to call his psychologist....... 20
H. Did the Senior Member misapprehend the significance of Mr Paterson’s treatment of animals?........................................................................................................................................................ 22
I. Did the Senior Member limit her consideration of future risks to risks of Mr Paterson being involved in organised crime or terrorism?............................................................................ 24
J. Was the Senior Member’s decision reasonably open?......................................................... 27
K. Disposition................................................................................................................................... 29
HIS HONOUR:
A. Introduction
Cameron Paterson, the respondent, lives in Mount Taylor, which is just north of Bairnsdale in Gippsland. It is a rural or semirural area where firearms are not uncommon. Mr Paterson was charged with some firearms-related offences. Information also emerged indicating he had engaged in cruelty to animals, took pleasure in causing animals pain, and had mistreated persons in custody by failing adequately to prepare their meals. On 15 July 2021, a ‘firearm prohibition order’ made under ss 112D and 112E of the Firearms Act 1996 was served on Mr Paterson. The firearm prohibition order had been drawn up by a delegate of the Chief Commissioner of Police, the appellant. It expires on 14 July 2031.
A firearm prohibition order prevents the person named in the order from acquiring, possessing, carrying or using a firearm or firearm related item. It also prevents that person from entering anyone else’s property if there is a firearm on that property,[1] and permits the police, without a warrant or consent, to enter and search the named person’s premises and to search that person in order to determine whether they have a firearm.[2] It also permits the police, without a warrant or consent, to search any person who is in that person’s company if the police reasonably suspect that that person has a firearm.[3] As was acknowledged in the statement of compatibility to the Firearms Amendment Bill 2017, firearm prohibition orders are partially incompatible with the Charter of Human Rights and Responsibilities Act 2006, but their introduction was thought justified in the interests of protecting the community.[4]
[1]Firearms Act 1996 (Vic) s 112O.
[2]Ibid ss 112Q and 112R.
[3]Ibid s 112S.
[4]Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2955 (Lisa Neville, Minister for Police).
The firearms prohibition order prevents Mr Paterson from visiting many of his neighbours, family and friends and from taking his daughter to visit some of her friends (unless he first asks them to remove their firearms from their property to another property) and limits his work as a delivery driver because he is unable to deliver to some of his employer’s customers. Mr Paterson exercised his right to have the Victorian Civil and Administrative Tribunal (‘the Tribunal’) review the decision of the delegate of the Chief Commissioner.[5] That review was a review on the merits. After a hearing that lasted three days, at which Mr Paterson and several other persons gave oral evidence and were cross-examined, a Senior Member of the Tribunal found that Mr Paterson’s conduct did not justify the firearms prohibition order being made and published reasons for that decision.[6] The Chief Commissioner has applied for leave to appeal under s 148 of the Victorian Civil and Administrative Law Act 1998 against the Senior Member’s decision. Any appeal is limited to an appeal on a question of law. The application for leave to appeal and any appeal, if leave be granted, were heard at the same time.
[5]Firearms Act 1996 (Vic) s 112L.
[6]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903.
Mr Paterson does not have a licence to possess a firearm and it was not part of the Senior Member’s role to decide, and it is not part of my role to decide, whether Mr Paterson is a ‘fit and proper person’ to have a firearms licence so that he can lawfully possess a firearm himself.[7] The Senior Member’s decision was limited to deciding whether Mr Paterson should be subject to a firearms prohibition order, and my role is limited to determining whether the Senior Member erred in law in reaching her decision.
B. The statutory test
[7]See, eg, Firearms Act 1996 (Vic) ss 17(ba) and 17(c).
Section 112E of the Firearms Act 1996 provides as follows:
112E Considerations for making a firearm prohibition order
The Chief Commissioner may make a firearm prohibition order only if the Chief Commissioner is satisfied that it is in the public interest to do so—
(a) because of the criminal history of the individual; or
(b) because of the behaviour of the individual; or
...
(d)because, on the basis of information known to the Chief Commissioner about the individual, the individual may pose a threat or risk to public safety.
The requirement that it be ‘in the public interest’ that the order be made requires an assessment of the risk of firearms-related violence that the person poses or may in the future pose to the community, an assessment of the extent to which that risk may be mitigated by the making of a firearm prohibition order, and then weighing that against the public interest in citizens not being subjected to greater restrictions on their freedom of movement and association and freedom from search without warrant than is reasonably necessary.[8] The assessment of the risk that the person does or may pose to public safety includes a consideration of the likelihood of the person coming into possession of a firearm and whether that future possession of a firearm is likely to create or aggravate a risk to public safety.[9] The assessment of any risk to the community will be informed by experience but will be imprecise and uncertain and will unavoidably involve an element of speculation.[10]
C. The matters that gave rise to a concern and their context
[8]Chief Commissioner of Police v Websdale (2019) 280 A Crim R 463, 474-476 [35]-[47], 477-478 [56]-[57].
[9]Ibid 475 [44].
[10]Ibid 475 [40].
There were a number of aspects of Mr Paterson’s behaviour or background that give rise to concern. The Senior Member made the following findings of fact:
(a) New South Wales hunting. On 5 March 2017, Mr Paterson trespassed and hunted on private property in New South Wales without the necessary licenses to do so, and was charged with infringements for his actions on that day. This later led to the suspension of his licence to possess firearms.
(b) Shooting rounds down the gully. In winter of 2017, Mr Paterson went spotlighting on his parents property with a colleague. In the course of so doing, Mr Paterson received a 45 minute phone call from his former partner, during which he was ‘reprimanded’ about something, and at the end of which Mr Paterson was upset. When they returned to Mr Paterson’s house, Mr Paterson fired a number of rounds, probably three, into a dark gully below his property whilst screaming. This was ‘entirely contrary to the safe management and handling of a firearm’.
(c) Hitting a wombat. The same night, Mr Paterson hit and killed a wombat while driving home. Mr Paterson took a video, which he sent to his colleague, of him kicking the dead wombat and expressing irritation that he had hit it because his car had just had a wheel alignment.
(d) Keeping unregistered firearms and ammunition. On 3 October 2017, Mr Paterson was served with a notice of suspension and a proposal to cancel his firearms licence. This was prompted by the infringement notices arising from the hunting incident in New South Wales. Although Mr Paterson surrendered several firearms, he made a ‘deliberate decision’ to hide an unregistered handgun and rifle at his parents’ home rather than to surrender them. The handgun had a silencer, which was ‘particularly concerning’. On 13 March 2018, when the police searched for firearms, they found ammunition including some spent ammunition as well as the rifle and handgun. Mr Paterson was then charged with a total of eight firearms-related offences.
(e) His dog and the kangaroo. When Mr Paterson’s telephone (or a backup of his telephone saved on his computer) was searched, a video was located that had been taken in about mid-2017 and circulated to some colleagues. That video showed his dog attacking a motionless but alive kangaroo on the road in front of his car. Although there was no laughter in the video, the Senior Member found that there probably were two other videos taken (that were not found when Mr Paterson’s phone was searched) that showed his dog eating the kangaroo’s leg and licking a pool of blood, and that either one of those videos recorded Mr Paterson laughing or he laughed while showing the video to one of his colleagues. Mr Paterson’s failure to intervene when his dog attacked the kangaroo was the basis of a charge of cruelty to animals, to which Mr Paterson pleaded guilty.
(f) The intervention order. Also in October 2017, Mr Paterson’s former partner obtained an intervention order against him following an interaction when Mr Paterson was said to have grabbed her shirt causing her to fall to the ground and then made contact with her resulting in pain to her jaw, neck, teeth and left ear.
(g) Tales of enjoying causing pain to animals. Mr Paterson told his colleagues, on various occasions, that he enjoyed killing animals including by shooting them in the stomach and that there were occasions when ‘he felt like killing something’ or ‘seeing blood’. He told a story, thinking it was funny, of shooting the leg off an emu. He was seen to laugh at a video that showed a goanna in distress. He asked for inappropriate detail from a person in custody how that person had shot and killed a pig and how much it had bled or squealed. Mr Paterson denied these allegations, but the Senior Member concluded that, at the relevant time, Mr Paterson enjoyed (or at a minimum was entirely detached from) the depictions and descriptions of the pain of animals. The Senior Member did not accept that he in fact shot an emu’s leg off.
(h) Treatment of persons in custody. Mr Paterson regularly failed to prepare meals in a proper fashion for persons in custody. Sometimes, this involved serving food that was still partially frozen. This was, the Senior Member found, ‘more than immature, it was deliberately cruel’.
On the other hand, the Senior Member also found, or referred to the facts that, or it was otherwise accepted that (using to the extent possible the same sub-headings):
(a) New South Wales hunting. The hunting incident in New South Wales involved Mr Paterson and a friend of his. His friend had a firearm but Mr Paterson did not have a firearm because he had only planned to go fishing on this trip. His friend had a Victorian game licence but not the equivalent licence for New South Wales. It was not suggested that the firearm was being used in an unsafe or threatening manner and there was ‘no suggestion he or his friend represented a risk to public safety’. It was possible that they believed that they were in a state forest rather than on private property. Mr Paterson said he paid the fines he was issued, rather than contesting them, notwithstanding that he believed he did not need a licence because he did not have a gun with him and believed he had been on state forest land rather than private property, because it was cheaper to pay than to fight the matter in court.
(b) Shooting rounds down the gully. The shots fired in the winter of 2017 were not targeted at anything and Mr Paterson shot in a direction that did not place any people at any actual risk.
(c) Hitting a wombat. The killing of the wombat, by a car at night in the country, was an accident. There was nothing to suggest that he had shot or deliberately run into the wombat.
(d) Keeping unregistered firearms and ammunition. The handgun had been made by him out of an old caulking gun and part of the barrel of his rifle. He had made the handgun because he liked and was good at making things and the idea of ‘reversing’ the purpose of the caulking gun had appealed to him. The gun was very loud, and the silencer had been given to him by a farmer at a later date when he was telling the farmer about the gun he had made. He had made only ‘limited use’ of the handgun. He did not surrender the rifle because of its age and historical value. A photograph of the rifle reveals what appears to be an old-fashioned type of single-load rifle stamped ‘made by the Birmingham Small Arms Co Ltd’. Mr Paterson’s actions in this respect were extremely foolish, but without ‘any criminal intent at the time or any ongoing criminal activity’. When the police arrived to search his property on 13 March 2018, Mr Paterson admitted that he had the handgun and rifle at his parents’ home, and took police to them. He pleaded guilty to the firearms offences. He was sentenced with a community corrections order, which he completed.
(e) His dog and the kangaroo. Mr Paterson pleaded guilty to the animal cruelty charge. He said that he was embarrassed and ‘in no way proud’ of his actions and that he would not do the same again.
(f) The intervention order. The family violence intervention order was obtained ex parte. Mr Paterson denied any violent action or intent. The application inter partes was quickly resolved by the giving of mutual undertakings without admissions. At the time of the incident, both Mr Paterson and his former partner called the police. The incident took place following a separation and a 12-month period during which they had argued, but with no history of physical violence. Mr Paterson’s former partner said she was ‘not fearful’, and in particular had no fear that Mr Paterson might use firearms against her. There has been no further involvement by police or the courts.
(g) Tales of enjoying causing pain to animals. There were no ameliorating considerations, save for the fact that the events were stories told by Mr Paterson and they did not involve violence to people.
(h) Treatment of persons in custody. There were no ameliorating considerations, save for the fact that they did not involve physical force or the use of firearms.
Other relevant matters included the following:
(a) The incident that gave rise to the intervention order appears to have been a one-off. There is no suggestion that Mr Paterson has otherwise been violent towards his former partner or his child, and it seems they have resolved their difficulties. Both Mr Paterson and his former partner have re-partnered, and Mr Paterson now has regular contact with his daughter without that being the subject of any ongoing disputation.
(b) The Senior Member accepted that the firearms prohibition order significantly impairs Mr Paterson’s ability to engage with his friends and family. He has about 50 friends and colleagues who have firearms, all of whom would be subject to the power of search in the event that Mr Paterson were with them, and whom he is not able to visit. The firearms prohibition order prevented him from visiting his parents until they arranged to store their firearms elsewhere. He had ‘limited opportunities to take his six-year old daughter to her friends’ homes because many of their parents have firearms’, and, although he could ‘drop her at the gate’, the gates could be at the ‘end of long driveways’. He could not cut wood at a 200-acre property where he used to because the owner has firearms. He worked as a driver for a food company, and could not deliver to certain locations (such as the Royal Australian Air Force base). The legal consequences of the firearms prohibition order ‘have brought a significant emotional burden for him and have led to isolation’.
(c) Some five years have now passed since the behaviour that precipitated the move to impose the firearms prohibition order. The Senior Member accepted that Mr Paterson has ‘engaged in no other criminal offending or charges since late 2017. There was no evidence of any other infraction of the law, criminal or otherwise before or since.’[11] There was no evidence that he had links to people engaged in criminal behaviour. Further, ‘there was no evidence the applicant has caused injury to another person or any animal or engaged in any behaviour which placed any person or animal at risk since late 2017’.[12] There have been no further criminal charges or any allegations of violent or other misbehaviour over that time.
[11]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903, [335].
[12]Ibid [337].
(d) The Senior Member accepted that Mr Paterson was performing well in his current job, which he has held for more than three years. He has shown ‘absolutely’ no form of aggression in his work and is a good team player who has not been the subject of any complaints by customers. He is, now, ‘a careful, responsible and well-respected employee’.[13] Mr Paterson had changed in the years since he had worked at Victoria Police as a custody officer.
[13]Ibid [338].
(e) The Senior Member accepted that Mr Paterson had been ‘highly stressed, distracted and ... was not in a good frame of mind’ at the time he engaged in the poor conduct in 2017 and 2018. He had taken ‘responsibility for his previous actions’ (including by performing the 250 hours of community service required) and had now changed and had ‘[rebuilt] his life’.[14]
(f) Mr Paterson had been around guns since he was 14 years old and the holder of a firearm’s licence since he was 18 years old. Other than the offences to which he pleaded guilty in 2018, he had not previously been charged with any firearms related offences. There was no evidence, or suggestion, that he has ever used a firearm to threaten or to injure anybody.
D. The Senior Member’s conclusions
[14]This evidence was given by a former colleague, who had been ‘disgusted’ at Mr Paterson’s earlier behaviour, but who had maintained contact with Mr Paterson after he left the police force.
The Senior Member, ultimately:
(a) found it unlikely that Mr Paterson would engage again in the reckless conduct of firing his gun like he did down the gully,[15] which was the only example of improper use of a firearm;
[15]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903, [368].
(b) was not satisfied that ‘there is any current or future risk of Mr Paterson becoming upset and out of control such that he fires a weapon in a way that could lead to a member of the public or any other person being harmed’;[16]
(c) was satisfied that the earlier unlawful possession of a gun and the making of the handgun ‘did not provide a foundation for a finding that Mr Paterson was likely to make use of weapons of that kind for future illicit purposes which may place the public at risk of harm’[17] or ‘support a finding he will in future obtain, conceal and use firearms for criminal purposes’;[18] and
(d) concluded there was ‘little to no risk’ of Mr Paterson ‘engaging in the use of illicit firearms to place the public in danger.’[19]
[16]Ibid [368].
[17]Ibid [370].
[18]Ibid [371].
[19]Ibid [382].
The above conclusions led the Senior Member to form the view that the public interest did not justify the making of a firearms prohibition order.
The Chief Commissioner contends that, in making the above conclusions, the Senior Member erred by excluding from her consideration some of the relevant matters concerning Mr Paterson’s behaviour, by misdirecting herself as to the proper application of s 112E of the Firearms Act 1996, and by forming a conclusion that was not reasonably open. The argument that the Senior Member failed to have regard to relevant matters overlapped with the argument that the Senior Member misdirected herself because the misdirection was characterised in part as her adopting an ‘unduly narrow approach to the risk assessment’. I will deal with the arguments alleging error of law without, for the most part, categorising them as either an alleged misdirection or an alleged failure to have regard to relevant considerations.
E. Did the Senior Member fail to have regard to the risk of Mr Paterson coming into possession of a firearm other than from his current circle?
The Chief Commissioner submitted that the Senior Member erred by only considering the risk of Mr Paterson accessing firearms belonging to his family, friends and associates and accordingly ‘failed to undertake the required broad assessment of the risk of [Mr Paterson] coming into possession of a firearm in the future’. The submission, as I understood it, was that the Senior Member failed to consider the risk of Mr Paterson making a firearm himself, or obtaining a firearm from people he did not currently know, or making new or different friends and associates.
The Senior Member was well aware of the fact that Mr Paterson had manufactured a handgun. She expressly accepted evidence given before her as to the risks presented by homemade guns and noted that the fact that Mr Paterson had manufactured a weapon was ‘alarming at first blush’.[20] She then said that when seen in context that behaviour was ‘far less sinister’, and that although it was ‘stupid’ that Mr Paterson had the handgun and silencer in his possession, she was not persuaded that the circumstances ‘could provide a foundation for a finding that the applicant is likely to make use of weapons of that kind for future illicit purposes which may place the public at risk of harm.’[21] In these circumstances, I am satisfied that, when making her risk assessments, the Senior Member did have regard to the fact that Mr Paterson had in the past made a handgun.
[20]Ibid [369].
[21]Ibid [369]-[370].
The submission that the Senior Member improperly limited her consideration to the risk of Mr Paterson accessing firearms from his ‘current family, friends and associates’ was based on paragraphs in which the Senior Member said the following:
[356] The [Chief Commissioner] contended that, given many of [Mr Paterson’s] family members and friends have firearms, there is a significant risk that he will have access to a firearm in future. I understood that submission proceeded on the basis that the relevant risk would arise from the applicant obtaining access to a firearm when unlicensed, that is, doing so illegally.
…
[360] Taking all of that evidence together with my finding that [Mr Paterson] has some insight into his offending and regrets his actions, if nothing else because of the trouble those actions have caused to him personally, I consider it highly unlikely that [Mr Paterson] would take the risk of accessing someone else’s firearm while he is not licensed under the Firearms Act. As I mention further below, there was no evidence any of his family, friends or other associates are likely to assist or encourage him to do so.
These paragraphs do not make good the submission. The last sentence in paragraph 360 was in response to a specific submission made by the Chief Commissioner and did not limit the broad finding expressed in the final clause of the immediately preceding sentence that it was ‘highly unlikely that [Mr Paterson] would take the risk of accessing someone else’s firearm’. Mr Paterson had plenty of friends and family who had firearms so explicit reference to them was not surprising. The Chief Commissioner did not submit to the Senior Member that there was a risk that Mr Paterson would move into a different social circle of, say, hardened criminals that had to be separately considered. Further, the Senior Member elsewhere in her reasons identified the need for her to assess the prospect of Mr Paterson coming into possession of a firearm in the future without in any way limiting that enquiry. She quoted the relevant passage from Chief Commissioner vWebsdale,[22] which set out the question as ‘whether the individual is likely to come into possession of a firearm’,[23] and she had a section of her reasons under the heading: ‘Will [Mr Paterson] come into possession of a firearm?’[24] When the reasons are read as a whole, it is clear that the Senior Member had regard to the broad question of the likelihood of Mr Paterson accessing firearms in the future and did not improperly limit that enquiry.
F. Did the Senior Member limit her considerations to conduct involving the use of firearms when determining whether it was in the public interest to make a firearm prohibition order?
[22](2019) 280 A Crim R 463.
[23]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903 [39], [41].
[24]The heading is above paras 354 to 361 of the VCAT reasons. Paras 356 and 360 of the VCAT reasons are set out in para 15 of this judgment.
When it came to determining whether it was in the public interest to make a firearm prohibition order, the Senior Member was required by s 112E of the Firearms Act 1996 to have regard to Mr Paterson’s criminal history, his behaviour, and what was known about him more generally.[25] The Chief Commissioner submitted that the Senior Member erred in law by excluding from consideration matters that did not involve the use by him of a firearm. More particularly, the Chief Commissioner submitted that when the Senior Member came to engage in the necessary balancing exercise she failed to have regard to Mr Paterson’s treatment of animals,[26] his treatment of prisoners,[27] the incident with his former partner that resulted in the intervention order including the fact that his decision not to surrender his handgun was made on the same day,[28] his failure to undertake an anger management or like course,[29] his expressed desire to ‘kill something’ and to ‘see blood’,[30] his lack of insight,[31] his prior history of being treated with antidepressant and anxiety medication,[32] and the fact that he did not lead evidence from his psychologist.[33]
[25]See s 112E of the Firearms Act 1996 (Vic) set out in para 5 of this judgment.
[26]The various aspects of this were set out in ground of appeal 1(a) to (i).
[27]Ground of appeal 1(j).
[28]Ground of appeal 1(k), (l).
[29]Ground of appeal 1(m).
[30]Ground of appeal 1(n).
[31]Ground of appeal 1(o).
[32]Ground of appeal 1(p).
[33]Ground of appeal 1(q).
I accept that if the Senior Member limited herself to considering only the conduct of Mr Paterson that involved the use of a firearm, then the decision would be liable to be set aside either because the Senior Member must have misdirected herself as to the statutory test or failed to have regard to mandatory relevant considerations.
The Chief Commissioner relied on passages in the Senior Member’s reasons where she focused on the use of firearms and described some matters as not being ‘relevant’ when they did not involve the use of firearms. The Senior Member stated that:
[126]In the circumstances, I am not satisfied the events which led to the issuing of the [intervention order] are relevant to whether the [firearms prohibition order] is required to remain in place.
…
[134]The circumstances surrounding the NSW infringements have some relevance to the [firearms prohibition order] because firearms were involved…
[135]In the end, I have concluded the NSW infringements have little relevance to whether the [firearms prohibition order] is to be maintained.
…
[363]As summarised earlier, the [Chief Commissioner] contended that the possible future risk posed by [Mr Paterson] arose from his past conduct. Leaving aside the family violence issue and the NSW infringements, that leaves [Mr Paterson’s] past firearms and cruelty offending and his ‘other behaviour’.
…
[378]I largely agree with [Mr Paterson’s] submission that the animal cruelty offence and the other related behaviour is not relevant to the risk I am required to assess. I differ to the extent that conduct of the kind engaged in by [Mr Paterson] is likely to cause distress to members of the public and, if observed, could cause an injury to a bystander.
[379][Mr Paterson] correctly places reliance on the fact that there was no direct evidence before me to support a finding that [he] had inflicted cruelty on animals by use of a firearm.
However, these paragraphs have to be read in context. The Senior Member expressed some important conclusions at the beginning of her reasons, and then explained how she reached those conclusions in the balance of the reasons. The following statements from the first part of the reasons are relevant in determining the scope of the matters to which she had regard and in interpreting the passages set out above:
[9]After considering the evidence before me and the parties’ submissions, I have concluded that [Mr Paterson’s] past conduct, criminal and otherwise, and the more recent evidence relevant to the required risk assessment, does not support a finding than an [firearms prohibition order] is required.
[10]As will soon be apparent, I have found [Mr Paterson’s] criminal offending to be serious. I have found that, in the relevant period, [Mr Paterson] displayed contemptible and reckless behaviour. It included disgraceful cruelty to animals and the potentially dangerous discharge of his firearm.
[11]Some of his other conduct was tasteless in the extreme. He engaged in low level, but nevertheless inappropriate, mistreatment of prisoners he was responsible for as a PCO.
…
[13]The critical issue before me was whether [Mr Paterson] presents a risk of engaging in further firearms related conduct that would jeopardise public safety…
…
[16]I have considered whether [Mr Paterson] presents a risk to public safety commensurate with him being subject to the [firearms prohibition order] restrictions for a further nine years.
[17]I have reached my view that the [firearms prohibition order] is to be set aside despite my many criticisms of [Mr Paterson’s] past behaviour and what I have regarded as his less than completely honest evidence.
[18]… I have been required to apply the relevant provisions of the Firearms Act, having regard to Court of Appeal authority to decide whether I can say that, in the absence of an [firearms prohibition order], an identified risk [Mr Paterson] presents to public safety is likely to materialise because of [his] criminal history or other behaviour.
[19]After weighing the totality of [Mr Paterson’s] past disgraceful conduct, viewed in light of his more recent entirely law abiding conduct and maturity, I have concluded he does not meet the criteria for an [firearms prohibition order].
The Chief Commissioner submitted that when these paragraphs of the Senior Member’s reasons are read with the paragraphs set out in paragraph 19 above, the references in paragraph 9 of her reasons to ‘past conduct, criminal and otherwise’ and in paragraph 19 to Mr Paterson’s ‘past disgraceful conduct’ were references to Mr Paterson’s past conduct only in so far as it involved the use of a gun. That is, these were references only to his retention of guns and ammunition in his car and his shooting down the gully.
I disagree. When the Senior Member’s reasons are read as a whole, the statements in paragraphs 126, 135 and 378 of her reasons that the intervention order, the New South Wales infringements and the animal cruelty are not ‘relevant’ do not indicate that the Senior Member treated those events as legally irrelevant and thus to be disregarded by her in the risk assessment. To interpret them in that way would be unfair to the Senior Member, and inconsistent with the fact that she set out and carefully considered the evidence and expressed findings relating to those events in her reasons. Had she considered those events to be legally irrelevant, it would not have been necessary for her to do this.
Further, in the course of considering the events that led to the intervention order, the Senior Member described some aspects, such as Mr Paterson’s former partner as not being fearful and the lack of a history of physical violence between them, as ‘relevant to the matter’ before her.[34]
[34]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903, [122].
The better interpretation of her reasons, when read as a whole, is that the Senior Member’s statements that these matters were not ‘relevant’ were intended to convey that she did not consider that they warranted being given any appreciable weight, rather than that they were excluded from consideration altogether. This approach is, in my view, compelled by the language used by the Senior Member in paragraphs 9 to 19 of her reasons set out in paragraph 20 above. In my view, the references in those paragraphs to ‘past conduct, criminal and otherwise’, ‘contemptible and reckless behaviour’, ‘disgraceful cruelty to animals’, ‘mistreatment of prisoners’ and ‘past disgraceful conduct’ are all clear indications that the Senior Member did not limit herself to incidents involving the use of firearms but, properly, had regard to Mr Paterson’s history of behaviour more generally as referred to in the balance of her reasons. This includes all the conduct of which the Senior Member was critical such as Mr Paterson’s mistreatment of animals, his stated desire to ‘kill something’ and to ‘see blood’, and his preparation of meals for prisoners under his supervision. It is notable, for example, that in the body of her reasons the Senior Member said that Mr Paterson’s failure properly to provide meals to prisoners ‘was more than immature, it was deliberately cruel’[35] and that it amounted to ‘low level, but nevertheless inappropriate, mistreatment of prisoners’.[36]
[35]Ibid [266].
[36]Ibid [11].
Reasons for judgment will often consider issues consecutively and make observations as they proceed. That does not mean that there is not, ultimately, a process whereby the various matters are considered together when the ultimate evaluation is made. That is, in my view, what has happened here.
As noted above, the evaluation of risk and what the public interest required, and the weight to be given to the various events, were matters for the Senior Member.
G. Did the Senior Member overlook certain matters?
As well as submitting that the reasons justify a conclusion that the Senior Member treated some evidence as irrelevant, the Chief Commissioner submitted that the Senior Member in effect overlooked (or mistook) certain evidence. The evidence referred to was:
(a) The evidence that ammunition was found in Mr Paterson’s car in the bottom of a ‘stubby holder’ and shipping container;
(b) The fact that Mr Paterson wrote a letter seeking to have the suspension of his licence lifted in which he stated that he had ‘always stored, carried and used firearms in a secure and responsible manner’ at a time when he was unlawfully possessing the rifle, handgun and ammunition and storing the firearms in the boot of an unregistered car;
(c) The evidence that Mr Paterson’s former partner had ended up with a torn shirt after the incident that gave rise to the intervention order;
(d) The fact that the interaction with his former partner took place on the same day (3 October 2017) that he surrendered his other firearms; and
(e) Mr Paterson’s mental state, medical treatment and lack of certain other treatment and the fact that he did not call evidence from his psychologist.
It was implicit in the Chief Commissioner’s submissions that if the Senior Member failed to have regard to those matters then the Senior Member had erred in law. This submission raised the difficult question of when an error of fact or a failure to refer to a factual matter may be elevated to an error of law. If the distinction is to be maintained, there must be errors of fact that are not errors of law. A failure to have regard to a matter will amount to an error of law if the legislation requires its consideration.[37] Here, the legislature required the Senior Member to have regard to Mr Paterson’s ‘behaviour’ and ‘information known’ to her. But that does not mean that a failure to have regard to any piece of evidence that fell within those descriptions was an error of law:
A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.[38]
[37]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
[38]Ibid 61 (Brennan J).
The test has also been expressed as being whether a failure to have regard to a particular piece of evidence is of such significance that it may be inferred from the failure to consider it that the decision maker has failed to perform the statutory function conferred on him or her.[39] The error must also have been material to the outcome.[40] Ordinarily, though, if the error of fact is of sufficient significance to amount to an error of law, it would also be material to the outcome.
[39]Chang v Neill (2019) 62 VR 174, 200 [92] (Maxwell ACJ, Beach and Kyrou JJ).
[40]See, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J).
Although this test has emerged in the context of applications for judicial review, I consider that it applies also where there is a statutory appeal limited to a question of law.
G.1 The ammunition in the stubby holder
The evidence was that Mr Paterson had stored his handgun, rifle and some ammunition in the boot of an unregistered car at his parents’ property, that some ammunition was also found at the bottom of a stubby holder in his (registered) car, and that some ammunition was also found in a shipping container at his property.
The Senior Member correctly noted that the handgun, rifle and ammunition had been ‘hidden’ in the unregistered car at his parents’ property[41] and that ammunition was found in a shipping container at Mr Paterson’s property,[42] but did not expressly refer to the ammunition in the stubby holder that was found in Mr Paterson’s (registered) car.[43] Nor did the Senior Member refer to Mr Paterson’s evidence that he found the ammunition in his car when he was cleaning it and put it in the stubby holder without any intention to ‘secrete’ it. The Senior Member either mistakenly considered that the ammunition in the stubby holder was in the unregistered car, or did not refer to the ammunition that was in the stubby holder in her reasons.
[41]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903, [84].
[42]Ibid [89].
[43]Ibid [84].
Either way, I do not consider that this amounts to an error of law. The Senior Member noted that Mr Paterson had made a ‘deliberate decision not to surrender all firearms and related devices at the time his Firearms Licence was suspended.’[44] That is, that he retained firearms and ammunition. That was the significant point. If the Senior Member considered the ammunition in the stubby holder but wrongly thought it was in the unregistered car, then that error was a minor error of fact that, I am satisfied, does not justify a conclusion that the Senior Member did not properly consider the material before her or failed to perform her statutory function and was not material to the conclusion that was reached. If the Senior Member did not separately have regard to the evidence that some ammunition was found in a stubby holder in Mr Paterson’s car, in circumstances where the Senior Member had noted and referred to the fact that Mr Paterson had unlawfully hidden firearms and ammunition in the unregistered car and in a shipping container at his house, then I consider that to be no more than a failure to refer to a factual matter of insufficient significance to justify a conclusion that the Senior Member did not properly consider the material before her or that she failed to perform her statutory function. I would, similarly, consider it to be a failure that was not material to the conclusion that was reached.
G.2 The letter
[44]Ibid [116].
The Chief Commissioner pointed out that when Mr Paterson wrote a letter on 25 October 2017 in which he sought a return of his firearms licence, and in which he asserted that he had always been a responsible handler of firearms, Mr Paterson had failed to surrender two firearms and was keeping them in the boot of a car on his parents’ property. The Chief Commissioner contended that the Senior Member failed to consider this conflict and what it indicated about Mr Paterson’s honesty.
The argument that the timing of the letter was significant in this way was not put by the Chief Commissioner to the Senior Member. In any event, the Senior Member clearly had regard to the fact that Mr Paterson unlawfully retained his rifle and handgun and stored them where he did, and that this led to him being charged with criminal offences to which he pleaded guilty and for which he was penalised. The Tribunal formed and expressed views on Mr Paterson’s reliability as a witness. If the Tribunal failed separately to have regard to the terms of this letter in doing so, then, in my view, that was at most an error of fact that fell short of amounting to an error of law in the sense described above.
G.3 The torn shirt
The Chief Commissioner noted that it appeared to be undisputed that Mr Paterson’s former partner had ended up with a torn shirt, and that this fact did not feature in the Senior Member’s analysis. The Senior Member did have regard to the incident between Mr Paterson and his former partner. The fact that the shirt was torn appears less significant than Mr Paterson’s former partner’s statement that she was not afraid of Mr Paterson, and the lack of any history, putting whatever may be made of this event to one side, of bullying or domestic violence on the part of Mr Paterson. I do not consider the Senior Member’s failure to have regard to the fact that Mr Paterson’s partner had ended up with a torn shirt amounted to an error of law in the sense described above.
G.4 The timing of the intervention order
The Chief Commissioner submitted that the Senior Member erred in law by failing to have regard to the fact that the interaction that gave rise to the intervention order took place on the same day that Mr Paterson was served with a notice requiring that he surrender his firearms and on which he did not surrender his handgun.
The Senior Member considered the events that gave rise to the intervention order, and considered the circumstances in which Mr Paterson had manufactured his handgun and not surrendered it. It was not an error of law to fail to specifically to consider what, if anything, should flow from the fact that both events took place at the same time. It is noteworthy, that, again, the Chief Commissioner did not refer to the circumstances that gave rise to the intervention order, let alone submit that the timing of that event was of significance, in the written submissions he made to the Senior Member. The failure to refer to the fact that both took place on the same day does not mean that the Senior Member erred in law in the sense described above.
G.5 Mr Paterson’s psychological treatment and the failure to call his psychologist
The Chief Commissioner submitted that the Senior Member had erred in law by failing to have regard to the facts that Mr Paterson:
(a) had a history of being treated with antidepressant and anxiety medication;
(b) had failed to undertake an anger management or like course; and
(c) did not call any evidence from his psychologist.
The Senior Member did have regard to Mr Paterson’s mental state. As well as finding that Mr Paterson was ‘now a careful, responsible and well-respected employee’[45] and was no longer ‘engaged in objectionable or inappropriate behaviour or had otherwise overstepped the bounds of proper conduct in the workplace’,[46] she expressly accepted the evidence given by a witness who had known Mr Paterson for years that he had changed since the time of the events that gave rise to the Chief Commissioner’s concerns.[47] She referred to that witness’s views that Mr Paterson had ‘insight into his behaviour and had matured’ and that he had ‘learned his lesson and would not repeat the behaviour’.[48] Further, the Senior Member expressly noted that Mr Paterson had not engaged in ‘a Men’s Behavioural Change Program, Anger Management or extensive counselling’[49] and had not provided a report from his psychologist[50] but noted that the failure to do so had ‘been ameliorated somewhat by the evidence of the other witnesses’.[51]
[45]Ibid [338]. Emphasis in original.
[46]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903 [338].
[47]Ibid [339].
[48]Ibid [343].
[49]Ibid [331].
[50]Ibid [332].
[51]Ibid [346].
For these reasons, I am not persuaded that the Senior Member failed to have regard to, or treated as legally irrelevant, Mr Paterson’s failure to undertake an anger management or like course, the extent of his insight, or the lack of evidence from his psychologist.
Before me, the Chief Commissioner placed some emphasis on Mr Paterson’s history of having taken anti-anxiety or anti-depressant medication. This was not a matter that was explored before the Senior Member and it was not submitted to the Senior Member that the history of taking anti-anxiety or anti-depressant medication was a matter that should influence her decision. I am prepared to take judicial notice of the fact that the use of anti-anxiety or anti-depressant medication is common in the community and is not, in itself, evidence that a person cannot function well within society. In the circumstances of this case, where the matter was not given any prominence when the matter was argued before her, it cannot be said that the Senior Member erred in law by failing to have regard to Mr Paterson’s history in this respect.
H. Did the Senior Member misapprehend the significance of Mr Paterson’s treatment of animals?
The Chief Commissioner also submitted that the fact that a person is cruel to animals, even without the use of a gun, increases the risk that they will engage in firearms-related violence to people and that the Senior Member had erred by failing to treat her findings that Mr Paterson had been cruel to animals as relevant in this way in her assessment of the risk he posed of firearms-related violence to people.
As was discussed in oral argument, the first part of the Chief Commissioner’s argument was a form of ‘profiling’. Mr Paterson submitted that the Chief Commissioner’s argument should fail because there was no evidence that a person who engages in cruelty to animals (or prisoners) without the use of a gun is likely to engage in firearms-related violence to people. I am not persuaded by this. I do not consider that expert evidence was required before the possible connection could be considered. As noted above, the Senior Member was obliged to bring to bear her knowledge of human behaviour in making an assessment that is imprecise and uncertain and will unavoidably involve an element of speculation.[52] The Senior Member was entitled, if not obliged, to consider Mr Paterson’s history of cruelty to animals (and prisoners), even when it did not involve the use of a gun, when she was assessing the risk that he posed of firearms-related violence to people, and she was able to do so even in the absence of expert evidence.
[52]Chief Commissioner of Police v Websdale (2019) 280 A Crim R 463, 475 [40].
The question then becomes whether the Senior Member failed to consider Mr Paterson’s cruelty to animals when assessing the risk he posed of firearms-related violence. The Chief Commissioner relied in large part on the wording of paragraphs 378 to 380 of the Senior Member’s reasons (paragraph 378 has already been set out in paragraph 19 above but I will set it out again):
Matters relating to [Mr Paterson’s] past treatment of animals
[378]I largely agree with [Mr Paterson’s] submission that the animal cruelty offence and the other related behaviour is not relevant to the risk I am required to assess. I differ to the extent that conduct of the kind engaged in by [Mr Paterson] is likely to cause distress to members of the public and, if observed, could cause an injury to a bystander.
[379][Mr Paterson] correctly places reliance on the fact that there was no direct evidence before me to support a finding that [Mr Paterson] had inflicted cruelty on animals by use of a firearm. One consequence is that there is no evidence on which to rely to infer there was a risk that [Mr Paterson] would use a firearm to commit a cruelty offence against an animal.
[380]While [Mr Paterson] is to be admonished for that behaviour, I am not persuaded that a repeat (sic) could constitute a risk to the public interest in keeping the public safe from firearms-related violence.
The sentence in paragraph 380 is not easy to understand. The Chief Commissioner submitted that the sentence should be read as: ‘I am not persuaded that a repeat of the behaviour in relation to animals could constitute a risk ...’ That reading does not appeal to me. The behaviour itself involved neither firearms nor people, so it is inevitable that a repeat of that behaviour would not constitute a risk to the public interest in keeping the public safe from firearms-related violence. To read the sentence in the way the Chief Commissioner contends would be to denude the paragraph of any conclusionary content. Instead, I consider that the words ‘a repeat’ are a typographical error. In order to make sense of the paragraph in context, I read it as if the words ‘a repeat’ were replaced with the word ‘it’. That is, that the behaviour being referred to is the ‘animal cruelty offence and other related behaviour’ referred to in paragraph 378 with which the three paragraphs are concerned.
Contrary to the Chief Commissioner’s argument, I consider that the Senior Member did have regard to Mr Paterson’s history of cruelty to animals when she assessed the risk posed of firearms-related violence to people. I have considered and rejected in Part F above the argument that her statement that the ‘animal cruelty offence and the other related behaviour’ was ‘not relevant’ meant that she considered it legally irrelevant. Further, when the Senior Member’s reasons are read as a whole, it is apparent that she did have regard to Mr Paterson’s history of cruelty to animals when she assessed the risk he posed of firearms-related violence to people. The second sentence in paragraph 378 of her reasons that a person witnessing his cruelty to animals could suffer injury was not an indication that that was the only respect in which the cruelty to animals was relevant. The fact that the Senior Member engaged in a careful consideration of the evidence relating to the animal cruelty, and the Senior Member’s broad statements in paragraphs 9 to 19 of her reasons set out in paragraph 20 above, confirm that the Senior Member did have regard to the cruelty to animals when she was making the relevant risk assessment. I am satisfied that when she was doing so she had regard to the extent to which that behaviour indicated that Mr Paterson was likely to engage in firearms-related violence to people. The Chief Commissioner relied on what he described as ‘animal torture’ as a factor that meant Mr Paterson posed an unacceptable risk, and the Senior Member stated that she had regard to the parties’ submissions. More fundamentally, however, it was the prospect that the treatment of animals revealed aspects of Mr Paterson’s character that made him a risk to people, and that prospect only, that made the evidence of his treatment of animals relevant and significant and caused the Senior Member to consider that evidence in the detail that she did. The statement in paragraph 380 of her reasons expresses her evaluation that the cruelty to animals did not, in all the circumstances, give rise to an appreciable risk that he would engage in firearms-related violence directed at people.
I. Did the Senior Member limit her consideration of future risks to risks of Mr Paterson being involved in organised crime or terrorism?
In the second reading speech for the Bill that introduced the power to make a firearms prohibition order, the Minister said:
The risk of the illicit use of firearms by organised crime groups, networked offenders and persons rated as terrorist risk by police clearly threaten public safety...
...
FPO’s will be used in scenarios where no other appropriate mechanism exists to prevent a person from obtaining a firearm, but sufficient intelligence exists to indicate that it is contrary to the public interest for that person to possess a firearm.
...
Let me be clear, this measure is not about legitimate firearms licence holders. The government’s expectation is that the chief commissioner uses these orders to focus on serious criminal activity... The criteria for making a FPO has been left in broad terms in order to provide the chief commissioner with operational flexibility to proactively and quickly respond to fluid serious criminality, intricate criminal enterprises and counter-terrorism related operations.[53]
[53]Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2962-2963 (Lisa Neville, Minister for Police).
In the course of giving her reasons, the Senior Member said:
[373]There is no doubt that [Mr Paterson] engaged in dishonest and criminal conduct in the period from 2017 to around mid-2018 and that some of that related to firearms. However, he has not been shown to have ever been associated with criminal gangs, terrorists or others with criminal records. He has never engaged in the criminal or dangerous behaviour the Minister described in the Second Reading Speech. Other than in the limited way I have identified in respect of the shooting incident, none of his behaviour was directed outwards to members of the public.
The Senior Member had earlier set out parts of the second reading speech in her reasons when she was discussing the Firearms Act 1996.[54]
[54]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903, [26].
The Chief Commissioner submitted that the Senior Member was distracted by the second reading speech from applying the statute according to its text and so ‘focussed only on the likelihood of [Mr Paterson] repeating a past event involving a firearm and using firearms for criminal purposes limited to organised crime and terrorism’.
I accept that if the Senior Member had considered that a firearms prohibition order was only available to prevent activity connected in some way to organised crime or terrorism, then that would amount to an error of law because the text of the statute does not make that a requirement and it would be wrong to limit the operation of the provisions in that way. However, that is not what I consider the Senior Member did.
First, the statement the Senior Member made was, clearly, correct and is not, of itself, sufficient to establish that the Senior Member improperly interpreted the Firearms Act 1996 as if the second reading speech limited the operation of the provisions in a way not justified by its text.
Second, the passages in the Senior Member’s reasons on which the Chief Commissioner relied[55] were in a part of her reasons under the heading ‘Would future possession of a firearm be likely to create or aggravate a risk to public safety?’, and under the subheading ‘Matters related to [Mr Paterson’s] past criminal offending.’ Immediately prior to the paragraphs relied on, the Senior Member summarised the Chief Commissioner’s submission that the Senior Member ‘could not be satisfied that [Mr Paterson] would not arm himself with a firearm in the future when he is faced with a stressful situation’, that she ‘could be satisfied that he would repeat his “protracted history of reckless conduct” and again engage in like conduct, including by reckless use of the firearm’, and that Mr Paterson ‘might use a weapon to again harm or ‘torture’ an animal.’[56] The Senior Member said that she disagreed with those contentions, and gave a number of reasons for which she disagreed with them. These matters indicate that the Senior Member did not treat the statute as if it were directed only at organised criminal behaviour of the type referred to in the second reading speech.
[55]Ibid [367]-[373].
[56]Ibid [365]. Emphasis in original.
Third, the Senior Member referred to and set out the interpretation of the legislation given by the Court of Appeal in Chief Commissioner of Police v Websdale[57] including the references in paragraphs 56 and 57 of that decision to the balancing process that was required in order to determine whether the public interest warranted the making of a firearms prohibition order.[58] Those paragraphs emphasised that the focus is on the risk of ‘firearm-related crime’, rather than any particular type of crime such as organised crime or terrorism. The Senior Member then later stated:
[376]On the evidence before me, I am in fact satisfied [Mr Paterson] has developed mechanisms to manage the challenges and stresses of daily life without resorting to behaviour that places the public at risk, whether by use of a firearm of otherwise.
[57](2019) 280 A Crim R 463.
[58]Paterson v Chief Commissioner of Police (Review and Regulation) [2022] VCAT 903, [40].
Again, this conclusion was not limited to behaviour of the type referred to in the second reading speech.
Finally, when the Senior Member came to assessing the risks in the event that Mr Paterson were to come into possession of a firearm, she considered matters such as his discharging his rifle down the gully, and the risks of a homemade gun.[59] Had she interpreted the Act in the way contended, paragraph 373 of the Senior Member’s reasons (set out in paragraph 52 above) would have been dispositive and her reasons could have been much shortened.
[59]Ibid [368]-[369].
Seen in context, the reference by the Senior Member to the concerns expressed in the second reading speech was unremarkable. When the reasons are read as a whole, there is no reason to conclude that the Senior Member interpreted s 112E of the Firearms Act 1996 as applying only to criminal activity of the type referred to in the second reading speech rather than to the risk of ‘firearm-related crime’ more generally.
J. Was the Senior Member’s decision reasonably open?
The Chief Commissioner also submitted that ‘it was not reasonably open to the Senior Member to fail to be satisfied that it was in the public interest for the firearms prohibition order to be maintained having regard to the facts found by her and the evidence before her.’ In support of this submission, the Chief Commissioner referred to a five factual matters that did not feature in the Senior Member’s reasoning process with a view to establishing, as I understood it, that when all the evidence is properly considered the only conclusion reasonably open was that a firearms prohibition order was required in the public interest.
The five matters were: first, Mr Paterson had held the rifle and handgun for some five months, they were only surrendered after the police had obtained a warrant, and the material found included three bullets in a beer ‘stubby’ in his car; second, the rifle and handgun were in an unregistered car at his parents’ property, not in his own car, but there was ammunition, including spent ammunition, at his own property; third, Mr Paterson wrote a letter seeking to have the suspension of his licence lifted in which he stated that he had ‘always stored, carried and used firearms in a secure and responsible manner’ at a time when he was unlawfully possessing the rifle, handgun and ammunition and storing the firearms in the boot of an unregistered car; fourth, the trespassing and hunting incident in New South Wales had caused the owner of the property concern because they might have been walking on the property not knowing that someone was hunting there; and fifth, the ‘nature, extent and frequency’ of Mr Paterson’s ‘violent, inhumane and cruel behaviour towards animals’.
I do not accept the Chief Commissioner’s submission that only one decision was open. In my view, it was open to the Senior Member to conclude that the public interest did not justify the imposition of a firearms protection order. There were, as the Senior Member recognised, issues in Mr Paterson’s past that raised serious questions as to his suitability to hold a firearms licence. The removal of the firearms prohibition order would not permit Mr Paterson lawfully to obtain a firearm but it would enable him to come into proximity to firearms. He could, for example, visit friends on properties that have firearms, or be in a car with friends who have a firearm with them. I accept that the imposition of a firearms prohibition order would to some degree reduce the risk that Mr Paterson might unlawfully obtain a firearm and commit an act of violence against a member of the public. However, that could be said of many people in the community. The making of a firearm prohibition order substantially impinges upon the rights and freedoms of citizens in a society. The public interest in preserving those rights and freedoms is very real. Also, it is noteworthy that:
(a) Mr Paterson has never hurt or threatened to hurt anyone with a firearm, and indeed has, so far as anyone knows, only ever on one occasion behaved in a foolish way with a firearm, despite being around them for most of his life;
(b) the only incident of ‘violence’ directed at another person, so far as we know, was an interaction with a former partner where her shirt ended up torn after she fell to the ground when they were in a dispute over custody of a child. This incident did not involve a firearm, and his former partner stated that she did not feel afraid of him then or since, and they now have appropriate, regular contact;
(c) on the Senior Member’s findings, Mr Paterson has matured since the events took place that gave rise to the Chief Commissioner’s concerns and has not engaged in any behaviour of that type for some years and is not likely to do so in the future.
The balancing exercise is an exercise on which reasonable minds may differ. The Senior Member was called upon to engage in that balancing exercise. She had the benefit of observing Mr Paterson give evidence including answering questions in cross-examination. She has, with respect and in my view, clearly considered the matter carefully and thoroughly, applied the correct law, and come to a view that was open to her.
K. Disposition
I will grant leave to appeal but dismiss the appeal. I will hear from the parties on the form of order and on costs.
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