Coughlan v Commissioner of Police, NSW Police Service

[2022] NSWCATAD 284

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Coughlan v Commissioner of Police, NSW Police Service [2022] NSWCATAD 284

Hearing dates:

29 June 2022

Date of orders:

24 August 2022

Decision date:

24 August 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1.    The decision under review is set aside.

2.    The decision is made that the applicant’s application for a category AB firearms licence is granted.

Catchwords:

Administrative Law – – firearms licence – refusal – whether not in the public interest for applicant to hold a licence

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

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

Lynch v Commissioner of Police, NSW Police [2006] NSWADT 80

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Michael Francis Coughlan (Applicant)
Commissioner of Police, NSW Police Service (Respondent)

Representation:

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

File Number(s):

2022/00039378

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Michael Coughlan (“the Applicant”) seeking review of a determination by a delegate of the Commissioner of Police, NSW Police Service (“the Respondent”). The Respondent’s decision was to refuse the Applicant’s application for a category AB firearms licence under the Firearms Act 1996 (“the Act”).

2. The Applicant sought an internal review of the decision. The internal review was not finalised within the 21-day period provided for by the Act and the Applicant has applied to the Tribunal for external review of the decision.

3. The refusal was on the basis that the Commissioner believed that it was not in the public interest for the Applicant to hold a firearms licence.

4. In August 2020, police officers attended the Applicant’s properties for a prearranged inspection. Following the attendance, the Applicant was charged with firearms offences.

5. The Respondent’s decision described the background to the charges as follows:

On 25 August 2020 police attended your location to conduct a pre-arranged safe storage inspection; they discovered that your firearms safe was located next to built-in cupboards in your carport. This location is visible from the driveway as it has no door and only open lattice for walls. Once the safe was opened it was apparent that the safe was secured by only one bolt to the concrete and two non-compliant screws into the wooden cupboards.

One firearm was located in a green household wheelie bin in your shed after you had taken it down to the cattle yards to control vermin, however upon realising that you did not have any ammunition, you placed it in the wheelie bin, where it was left for approximately two weeks.

6. During the inspection on a second property, police checked the Applicant’s safe and the registered firearms and they located an unregistered firearm in the safe – a Diana, Model 22, single shot break action air rifle (“the air rifle”). The Accused had owned the air rifle since he was ten years old. Police were unable to locate a serial number on the air rifle.

7. As a result of this incident, the Applicant was charged and found guilty of firearms offences. The offences concerned possessing the unregistered air rifle and unsafe storage of a firearm (“the Boito Shotgun”). The court did not record a conviction in relation to either offence, but he was directed to enter into a Conditional Release Order for 12 months pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

Applicable legislation

8. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.

9. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to refuse a firearms licence application. This application is made under section 75 of the Act and the ADR Act.

10. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

11. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

12. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance in how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

13. Section 11 of the Act provides for the issuing of licences. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.

14. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

1. Determination of administrative review by Tribunal

2. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)    any relevant factual material,

   (b)   any applicable written or unwritten law.

3. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

4. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   15. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

   16. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.

   17. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

   18. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.

   19. The Tribunal can determine itself, on the balance of probabilities, the conduct of an applicant and whether it justifies refusal of a licence. To find the conduct occurred is to not make a finding of criminal guilt. It would simply be a finding of conduct that is not compatible with the privilege of a licence.

The Public Interest

20. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The “public interest” is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

21. The “public interest” allows issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

22. “Public interest” embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to “public interest” is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

23. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

24. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

25. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The material before the Tribunal

26. The Applicant relies on his own evidence. He attended the hearing, gave evidence and was cross-examined. The Applicant also relies on a number of references which all speak highly of him and the roles he has played in the local community. His work has been recognised with the NSW Premier's Bushfire Emergency Citation. He also provided a certificate of completion from the Firearms Safety Awareness Council showing that he has undergone training in respect of his obligations under the Firearms Act.

27. The Applicant relies on his letter of apology provided to the Local Court and written submissions provided in support of the internal review application. Mr Kable, the Applicant’s solicitor, provided both those written submissions and oral submissions at the hearing.

28. The Respondent relies on documents filed pursuant to section 58 of the ADR Act. Mr Roberts, The Respondent’s solicitor, provided written and oral submissions.

The Respondent’s case

29. The Respondent contends that the Decision to refuse the Applicant’s application for a firearms licence is the correct and preferable decision because:

1. the Applicant contravened section 36(1) of the Firearms Act by possessing an unregistered firearm, specifically, the Diana Air Rifle;

2. the Applicant contravened section 39(1)(a) of the Firearms Act by failing to take all reasonable precautions to ensure that his firearms were safely kept, specifically, by storing the Boito Shotgun in a green household wheelie bin instead of a secure firearms safe and, in doing so, also contravened the conditions of his licence referred to in section 19(1) and 19(2)(a) of the Firearms Act;

3. the Applicant contravened section 40(1)(a) of the Firearms Act by storing firearms in a firearms safe that did not meet the requirements of a locked receptacle of a type approved by the Commissioner; and

4. the issue of a firearms licence to the Applicant would be contrary to the public interest within the meaning of section 11(7) of the Firearms Act in circumstances where;

1. the Applicant engaged in conduct contrary to the strict obligations imposed by the Firearms Act;

2. the Applicant’s conduct was not transient and isolated but rather:

1. the Applicant had possessed the unregistered Diana Air Rifle for more than approximately 60 years without taking steps to register it;

2. the Applicant stored the Boito Shotgun in an unsecured household wheelie bin for approximately two weeks; and

3. At the time of engaging in the conduct, the Applicant was aware of his obligations under the Firearms Act to ensure his firearms were securely stored when not in use.

30. In regard to the Applicant’s safe, the Respondent notes that on 25 August 2020, the Applicant’s firearms safe was in a location observable from the driveway to the property and, specifically, in a carport with no door and only open lattice for walls. The safe did not comply with section 40 of the Firearms Act as it was not adequately secured to the wall and, specifically, secured with only one bolt and two non-compliant screws, rather than four masonry anchors. The Applicant was issued a warning for his non-compliant safe.

31. The Applicant informed the police that some of his firearms were kept at a second property, at which he resided for two days per week. The unsecured Boito Shotgun was located in a green household wheelie bin at the second property.

32. In regard to the fact that the Applicant has undergone training in respect of his obligations under the Act, the Respondent’s submission is that this should be given limited weight. That is because there can be little doubt that the Applicant was or ought reasonably to have been aware of his obligations under the Act at the time he did not to comply with them. The responsibilities of a firearms licence holder are of serious, and licence holders must be expected not only understand and comprehend the guidelines and laws that govern them, but also must act in accordance with them.

33. In the Respondent’s submission, the Tribunal could not be satisfied that there is virtually no risk to the public if the Applicant were to have a firearms licence and it would be contrary to the public interest for him to be granted a firearms licence. Therefore, the Respondent’s Decision should be affirmed.

The Applicant’s case

34. The Applicant does not dispute the Respondent’s account of events. However, he stated that the conduct was out of character and that he has learnt a valuable lesson from his mistakes.

35. He relies on the apology to the Local Court in which he wrote:

I, Michael Francis Coughlan unreservedly apologise for my stupidity, and deep remorse for my negligence. On the first charge I just don’t know how this came about. On the second charge I can only say that this is the only time that this has occurred.

I have supported the gun laws. ...

I need a firearm for my work and that is all I have used them for. I am selling all my guns and would like to purchase one only to have to euthenase stock with immediacy and help control vermin. If you saw this as a possibility I would do the gun licence training, reposition gun safe and secure with 5 dyna bolts. ...

My gun safe is the highest quality. There was a gun safe in the home we live in but I decided to get a much heavier and stronger safe, and secure it to cement floor of our garage. ... This safe has passed inspection and on western property same. On most recent inspection it is deemed not fully compliant, which I will rectify.

36. The Applicant’s evidence at the hearing was consistent with the letter of apology.

37. He stated that he learned a lot from the training that he completed in respect of his obligations under the Act. He is acutely aware of the need for licensees to ensure that they keep up to date with changes to legislation that concerns obligation under the Act.

38. In regard to the air rifle, the Applicant’s evidence is that he has owned it for about 55 years, it is not functional, and he thought it was registered. He was aware of amnesty periods which allowed for the surrender of unregistered firearms to Police, but he didn’t take advantage of the amnesties because he thought the air rifle was registered. He accepts that he was mistaken in his belief.

39. In the internal review request, Mr Kable submitted:

We note that the unregistered firearm referred to a very old air rifle which did not work, but regardless of that, the Magistrate took that fact into consideration when assessing the objective seriousness of the offending, and ruled that it was appropriate to not record a conviction, and limited the bond period to 12 months, when 24 months was available...

40. In regard to the location of the unsecured Boito Shotgun at the unattended property, the Applicant’s evidence is that he stayed at the property for two days each fortnight. He conceded that the Boito Shotgun had been unsecured for a fortnight. However, the location is isolated. He said that the property is 11,000 acres in size, located 13 km from town. The location where the shotgun was discovered was 6 km from the road. The gates on the property were secured and nobody else had access. He nevertheless accepts that the firearm was not secured as required under the Act.

Discussion

41. I am satisfied that the Applicant has a genuine reason for a firearm licence. I am also satisfied that the Applicant’s character is not in issue.

41. There is no question that, prior to 25 August 2020, the Applicant had an unblemished record in his long history of gun ownership. He has no criminal convictions and there is no suggestion that he is of bad character or has a general disregard for the law. It is apparent these factors were taken into account by the Local Court when it dealt with the offences without recording a conviction.

42. What is in issue in these proceedings is whether it is against the public interest for the Applicant to hold a firearms licence. The principal issue in determining public safety is whether there is a risk to the safety of the public if the Applicant is granted another licence.

43. The Respondent submits, and I agree, that the Applicant’s failure to safely store his firearms is highly relevant to the public interest, as is the failure to register the air rifle. He did not return the Boito Shotgun to its proper storage place but left it in a wheelie bin at the unattended property. Such failures have the potential to have tragic consequences. It is fortunate that those consequences did not result from the Applicant’s failures in this case.

44. It is not in dispute that the air rifle was not operational. However, as I noted in Lynch v Commissioner of Police, NSW Police [2006] NSWADT 80:

The risk to the public is not removed simply because a firearm is not operational. Such a firearm can still be used in a hold-up or to threaten someone. A person not familiar with firearms might not make the differentiation between an operational firearm and one that had pieces missing if the firearm was pointed at them. They might reasonably believe that the rifle could cause them damage. There can be no doubt that it could give rise to an apprehension or fear of harm.

46. It is to the Applicant’s credit that he did not hide the fact that the Boito Shotgun was located in a wheelie bin. He volunteered the information to the police who attended the property. I also accept that the Boito Shotgun was left at an isolated location that was not readily accessible other than to the Applicant. While the Applicant’s failures are serious, they not at the worst end of breaches of gun safety and storage requirements.

47. It is clear from the references that have been given in support of the Applicant’s case that he is well regarded and his Bushfire Emergency Citation recognises his contribution as a volunteer who played a significant role in the emergency response effort to combat the 2019-2020 bushfires. It appears that his offences are out of character.

48. There is no evidence that the Applicant has regularly left his guns unsecured or that he had ever done anything like this before. I note that he has taken the additional step of undertaking a course to refresh his knowledge of the obligations imposed on him as a firearms licensee. I accept his statement that he has “learnt his lesson” and consider that it is probable that he will take appropriate steps to secure his firearms in the future.

49. As noted, the licensing regime is concerned with protecting the public and consideration of risk to the public. When all the circumstances are considered, I do not consider that there is a real and appreciable risk to the public if the Applicant is granted a firearms licence. I am mindful that he has been without his licence for two years. In my view, that period has focused his mind on the risks associated with his conduct and as a result it increases the likelihood that he will take appropriate steps to secure his firearms in the future.

50. In all the circumstances, I am satisfied that there is no reason, based on public interest grounds, to refuse the Applicant’s application for a firearms licence. That being the case, the licence should be granted.

Order

1. The decision under review is set aside.

2. The decision is made that the applicant’s application for a category AB firearms licence is granted.

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: 24 August 2022