CSD v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 212

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CSD v Commissioner of Police, NSW Police Force [2016] NSWCATAD 212
Hearing dates:	27, 28 October 2015, 25 and 26 February 2016. Final written submissions were received 8 June 2016
Date of orders:	21 September 2016
Decision date:	21 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg, Senior Member
Decision:	The Commissioner’s decision under review to refuse CSD’s application for a Minor’s Firearm Permit is affirmed.
Catchwords:	MERITS REVIEW - application for a Minor’s Firearm Permit – public safety - public interest - fit and proper person - discretionary decision.
Legislation Cited:	Administrative Decisions Review Act 1997 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Wilkinson v Commissioner for Police [2002] NSWADT 59
Category:	Principal judgment
Parties:	CSD (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Mr AA, CSD’s father (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	1510185

Reasons for decision

Background – chronology

1. On 24 July 2013 CSD, then 13 years old, applied for a Minor’s Firearm Permit (the Permit Application). The Permit Application was received by the Firearms Registry on 13 August 2013.

2. At about 3.50 pm on 31 August 2013 a police officer (the policewoman) who was the only police officer stationed at a regional town in NSW, telephoned other police and informed them that a rifle had been aimed at her from a building then used as a residence (the premises) across the road from her police station (the Event). At about 9 pm that evening several police officers, including Detective Senior Constable Matthew Peter Kelly, entered the premises with the consent of CSD’s father Mr AA, the owner of the premises, who resided there with his family. Mr AA directed the police to a room used to store his firearms safe (the storeroom). Mr AA unlocked the safe which contained four firearms registered to him together with parts and ammunition. The firearms, parts and ammunition were seized by the police together with a double barrel toy rifle and a toy pistol.

3. During the evening Detective Kelly interviewed Mr AA, his wife (Mrs AA), their eldest son and CSD, in relation to the Event, the firearms and toy guns at the premises, the safe in which Mr AA stored his firearms and access to that safe. Detective Kelly recorded at least part of the interviews. At 1.20 a.m. on 1 September Detective Kelly and another detective interviewed a teenager (Teenager CC) who was present at the premises at the time of the Event and recorded at least part of that interview.

4. On 1 September 2013, on Detective Kelly’s application, a Provisional Apprehended Violence Order (PAVO) was made against CSD. The protected person named in the PAVO was the policewoman. I observe that CSD had no previous criminal history.

5. On 1 September 2013 Detective Kelly suspended Mr AA’s firearms licence (the Licence).

6. On 6 September 2013 the Firearms Registry received an application dated 26 August 2013 from Mr AA for a permit to acquire a firearm.

7. On 9 September 2013 Mr AA requested that the License be restored to him.

8. On 17 September 2013 a delegate for the Respondent wrote to Mr AA stating it would prefer to make a decision in relation to his Licence after his son’s matter has been dealt with by the court. The Firearm Registry would then reassess all information.

9. On 29 October 2013, without waiting for a court to deal with CSD’s charge, delegates of the Respondent:

1. revoked the Licence and refused Mr AA’s application to purchase a firearm; and

2. issued a Notice of Refusal in respect of the Permit Application (the Refusal Notice). The reasons included:

1. CSD was subject to an interim apprehended violence order: and

2. he had pointed a firearm at the policewoman. That firearm may be one of his father’s firearms.

10. On 19 November 2013 Mr AA applied for an internal review of the three decisions of 29 October 2013 and requested that the review not occur until his son’s matter had been dealt with by a court.

11. On 25 November 2013, pursuant to information provided by Detective Kelly, police charged CSD with the offences:

1. “assault police officer in execution of duty without ABH-T2”.

2. “Intimidate police officer in execution of duty without ABH-T2”.

12. A specialist youth officer noted that CSD did not admit to the offences. Nearly 1 year later, on 2 October 2014, the assault charge was withdrawn and the other charge was dismissed.

13. In the meantime, on 26 November 2013, Mr AA was charged with the offence of “not keep firearm safely-not prohibited firearm/pistol”. The charge was heard in the Local Court on 2 October 2014 and the offence was proven. Mr AA was not convicted. He was conditionally discharged pursuant to section 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 12 months. The Magistrate stated “I consider it inexpedient to inflict any punishment”.

14. Mr AA made an all grounds appeal to the District Court from the Local Court decision and represented himself at the hearing on 23 March 2015. The District Court Judge found that the Crown failed to satisfy Her Honour beyond a reasonable doubt that Mr AA failed to take all reasonable precautions to ensure the safekeeping of his firearms. Her Honour upheld the appeal against the Magistrate’s order, dismissed the charge and set aside the order made against Mr AA by the Magistrate.

15. On 4 March 2014, following an internal review, a delegate of the Respondent affirmed the decisions to revoke the Licence on 7 November 2013 and refused Mr AA’s application for a permit to acquire a firearm. Notwithstanding the 19 November 2013 request, the Respondent did not review the Permit Application.

16. On 2 April 2014 Mr AA applied to the Tribunal to review the decisions made in the internal review.

17. On 1 April 2015 the Tribunal received an application on behalf of CSD to review the Decision.

18. Both applications to the Tribunal were heard together over 4 days in October 2015 and February 2016. After the hearing, the Tribunal received multiple written submissions on behalf of each party over a period of several months.

Material before the Tribunal

19. The material before the Tribunal included:

1. statement by Mr AA dated 14 September 2015 received 18 September 2015;

2. three bound volumes of documents, described as Applicant’s Evidence Books 1 of 3, 2 of 3 and 3 of 3;

3. two photographs of written numbers and one letter (the Characters) from Mr AA. In one photograph a key is shown next to the Characters and in the other a ruler showing imperial and metric measurements is shown next to the Characters;

4. a USB memory stick filed with the Tribunal on 23 April 2015;

5. a second USB memory stick filed with the Tribunal on 27 October 2015 and an index of the content of that USB stick received 14 March 2016;

6. from Mr AA on 21 May 2015 an unbound bundle of 10 pages of excerpts from statements, some pages were signed, some were unsigned; pages 14, 16, 18, 20 and 22 of what is said to be a transcript of interviews with Teenager CC at 1:20 am on 1 September 2013, and 18 pages said to be of iPod textings;

7. written submissions from Mr AA for himself and CSD:

1. (AS1) undated, received 15 January 2015;

2. (AS2) undated, received 9 March 2015 attached to which is page 1 of a Facts Sheet of the Respondent dated 24 April 2014 and a letter from Mr AA to the Firearms Registry dated 19 November 2013;

3. Mr AA’s closing submissions (ACS) with a covering letter dated 19 April 2016 received 21 April 2016;

4. (AS3) undated, received 2 June 2016; and

5. (AS4) dated 7 June 2016 received 8 June 2016;

8. section 58 documents in respect of Mr AA dated 13 May 2014 filed 16 May 2014;

9. section 58 documents in respect of CSD dated 28 April 2015 (sic) filed 14 April 2015;

10. an undated bound bundle of documents described as Commissioner’s Evidence filed 29 June 2015 in respect of Mr AA and CSD. These documents include a transcript of at least part of the interview by police of Mr AA and his family on the evening of 31 August 2013. An index to these documents was filed 5 November 2015;

11. a bundle of seven pages handwritten by the policewoman filed 27 October 2015;

12. a statement of Senior Constable Douglas Nyholm made 19 December 2015;

13. written submissions from the Respondent:

1. (RS1) described as Respondent’s Submissions in respect of Mr AA undated received 8 January 2015;

2. (RS2) described as Respondent’s Submissions, undated, received 24 February 2016;

3. (RS3) being an undated letter headed Additional information and submissions sought by Senior Member Isenberg from the Respondent to the Tribunal received 24 February 2016

4. the Respondent’s undated closing submissions (RCS) described as Respondent’s Submissions, received 17 May 2016. Attached to RCS are several documents; and

5. (RS4) a facsimile dated 1 June 2016 received 2 June 2016;

20. Oral evidence was given by the policewoman, Senior Constables Gregory Pettigrew and Douglas Nyholm, Detective Kelly, Mr AA, Mrs AA and Teenager CC.

21. Oral submissions were made during the hearing by both Mr AA for himself and CSD and by Mr Zoppo for the Respondent.

Consideration

Issue before the Tribunal

22. The decision of 29 October 2013 to refuse the Permit Application is the decision being reviewed by the Tribunal (the Decision). Mr AA’s applications have been dealt with in a separate decision.

Jurisdiction of the Tribunal

23. Relevant legislation concerning the licensing, use and safekeeping of firearms is found in the Firearms Act 1996 (the Act) and the Firearms Regulation 2006 (the Regulation). All references in these reasons to sections are to sections of the Act and all references to clauses are to clauses of the Regulation unless otherwise stated.

24. Section 75(1)(a) provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of the refusal by the Commissioner to issue a permit to the person. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision or refer it back to the Commissioner to be further dealt with.

Firearms legislation

25. When introducing the Firearms Bill, which became the Act, the then Attorney General, in the Second Reading Speech, stated amongst other matters that New South Wales was implementing “comprehensive, tough new gun laws”. He also said:

The Firearms Bill represents the toughest controls on firearms ever enacted in New South Wales. The underlying principles and aims of the proposed Act are that the possession and use of firearms is a privilege, not a right, and is conditional on the overriding need to ensure public safety

The proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms

26. Relevantly the underlying principles and the objects of the Act, set out at section 3, provide:

(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) …

(2)  The objects of this Act are as follows:

(a)  …

(b)  …,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, …,

(d)  …

(e) ….

27. Part 2 of the Act, comprising sections 7 to 32, provides for licences and permits and includes the following:

11   General restrictions on issue of licences

(1)  The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3)  A licence must not be issued unless:

(a)  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,

(b)  …

…

(7)  Despite any other provision of this section, 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   Genuine reasons for having a licence

(1)  The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

…

19   Conditions of licence

(1)  A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2)  Without limiting subsection (1), each licence is subject to the following conditions:

… 

(3)  A licence is subject to such other conditions as may be prescribed by the regulations.

The Respondent’s reasons for the Decision

28. The immediate background to the Decision is the Event and Mr AA’s lawful possession at the premises of registered firearms.

The Refusal Notice

29. The Refusal Notice informed CSD that a decision had been made to refuse his application. The Notice set out what it called “Reasons for my decision” and under the heading “Decision” stated:

I advise that the principals (sic) and objects of the Firearms legislation confirm that firearm possession and use is a privilege that is conditional, on the overriding need to ensure public safety by imposing strict controls on same.

I believe your actions in pointing a firearm toward (name of the policewoman) were reckless, irresponsible and intimidating. I am satisfied as witnesses have in the past observed you intimidating (name of the policewoman) whilst armed with sticks' and a cricket stump, it is quite possible you gained unauthorized access to one of your father's firearm and pointed it toward her.

Furthermore, if what you submit is true, regardless of whether the firearm was a toy or not, the fact you continued to point the firearm toward (name of the policewoman)'s direction when you knew she was in the location, demonstrates a serious lack of judgement and regard for public safety including that of your own personal safety. Had she armed herself and retaliated the outcome could have resulted in tragedy.

Given the above considerations, I am satisfied the public would hold real and justified concerns where you to be authorised to possess and use of firearms under the authority of a minors permit. (sic)

30. I deal with each of the grounds specified in the decision and the stated “Reasons” for the decision” as follows:

1. pointing a firearm towards the policewoman;

2. intimidating the policewoman whilst armed with sticks and a cricket stump;

3. unauthorised access to one of your father’s firearms;

4. continuing to point the firearm towards the policewoman;

5. possession and use of a firearm being a conditional privilege;

6. whether the public would hold concerns if CSD was authorised to possess and use a firearm.

A   Pointing a firearm arm towards the policewoman

31. The relevant Reasons in the Refusal Notice were:

Information made available to the Firearms Registry states on 31 August 2013 at approximately 3:45pm (name of the policewoman) walked out to the rear of the police station to retrieve a police vehicle from the yard to begin work at (name of town) Police Station. She reversed the vehicle out of the yard and stopped in the driveway to close gates. Upon returning to the vehicle after closing the gates she noted a firearm barrel protruding from your residence toward her, she could not see the person holding the firearm. Due to holding real fears for immediate safety she got in the police vehicle and drove to another location where she contacted other police.

Whilst waiting for additional police information was received that the firearm pointed at (name of the policewoman) was a toy gun….

When questioned by police you and your brother advised them you have not accessed the firearms and do not know where the pin code for the cabinet was marked. You were also asked a number of questions in relation to the firearm pointed at (name of the policewoman). During interview you stated you were playing with a friend who was outside and you were holding the black coloured plastic rifle out through the front door pointed in the direction of DD Street (being the street where (name of the policewoman) had parked the police vehicle). You stated you had seen (name of the policewoman) moving the police vehicle out of the yard but had not pointed the barrel of the gun toward her in a threatening manner. When questioned further about this matter you admitted there have been ongoing issues between you and (name of the policewoman).

The policewoman’s evidence

32. In summary the policewoman’s evidence was that she drove her police vehicle out of the rear yard of the police station onto a driveway but not onto the street. She got out of the vehicle, closed the swing doors of the yard and was returning to the vehicle when she noticed a firearm barrel pointed at her from a door that was ajar on the ground floor of the premises across the road from the driveway. She entered the driver’s seat of the vehicle and could still see the barrel pointed at her through the windscreen.

33. The policewoman then drove onto DD Street, turned right and then turned into EE Street. She tried to telephone other police officers, telephoned a friend (Mr BB) who lived in the town, and drove a few hundred yards away, stopping the vehicle and alighting near her horse paddock. Shortly after that she was joined by Mr BB and Mr BB’s wife.

34. The policewoman estimated that the distance from where she was standing to the firearm barrel when she first sighted it was 20 to 25 m, the width of the street. She said she feared for herself and her family. Subsequently she acknowledged that her family was not in town that day.

35. The policewoman initially said that the barrel was dark grey and she had a clear sight of it. She also initially said that the barrel was not in a shadow. She said that the doorway opened inwards, and was between 10 and 15 cm open, closer to 10 cm. She could not see anything of the person holding the rifle, she could only see the barrel. The area behind the door was in darkness, there was no silhouette and she could not identify the person holding the rifle behind the door.

36. The policewoman was asked if the barrel was in sunlight and she said she did not recall it being in a shadow. She was reminded that the doorway she identified was on the ground floor of a two story building with a balcony directly above. She then agreed that the barrel was in a shadow.

37. The policewoman’s statement of 9 November 2013 included:

… The height of the barrel was consistent with someone standing and pointing it from the shoulder position.”

38. In subsequent evidence she said that it would not have been at her husband’s shoulder height because he was 6 foot five. She then said that the barrel would not have been at her shoulder height, it would have been at the shoulder height of a shorter person and she did not know where people held their rifles.

39. Initially the policewoman said that the rifle barrel was pointing out of the third door from the right of the premises. Subsequently she said the rifle barrel was pointing out of a different doorway.

38. The policewoman said that the rifle barrel was pointing directly at her. She was asked how she could estimate the length of the barrel if it was pointing directly at her. She did not give a clear answer. When the policewoman was asked whether she could see part of the length of the barrel, she said:

Yes I could see part of the side of it from where I was standing. The firearm was pointed at me. The whole positioning was at an angle from where I was and the door is and as it’s coming out and I’m sort of my car’s here and I’m here so I see it when I get back in the car I could see was pointing at me in my direction.

41. The policewoman was asked “was it pointing through the windscreen at you?” Her reply was “Yes I could see it through the windscreen.”

42. The policewoman said that she had served with the police for 16 years and during that time a firearm had never been pointed at her. She had never been involved in a firefight. She is experienced with the personal weapon she carries but has no experience with shooting long barrelled firearms. Subsequently the policewoman said she has carried out firearm inspections and has seized long barrelled firearms.

43. The policewoman’s oral evidence included:

1. I saw the barrel as I was walking back to the driver’s door and I saw it again it was a second look when I got back in the car - although I saw it, it was like a double take I guess. I was scared for my life.

2. When driving down DD Street I looked in my rear view mirror and could not see any person.

44. The policewoman was asked whether it was possible that there was a double barrel on the firearm. She said “no, not at all”.

45. The policewoman’s evidence on re-examination included:

1. I looked at the firearm when I was standing beside my vehicle and when I was in my vehicle and when I was taking off with my vehicle it was all very quick; and

2. I accept that my description of the length of the barrel was a guesstimate not an estimate.

46. The policewoman was shown a photograph on page 15 of the Commissioner’s Evidence. The photograph included four rifles and a toy double barrel rifle. When asked which firearm in the photograph most closely resembled the firearm she believed she saw, she identified the firearm second from the left, that is the firearm next to the toy on the far left. She said that she recognised the firearm from “the sight and the size of what the barrel looks like”.

47. In earlier evidence the policewoman identified the same firearm. She previously said she had identified it by “seeing the one hole and nothing else”.

48. The policewoman said that a plastic toy gun taken to the area near the horse paddock (after the event) by CSD was not the plastic firearm in the photograph.

49. When asked the difference between the firearm taken to the area near the horse paddock and the firearm in the photograph the policewoman said the first firearm had a cork hanging out of it, and she believed it had an orange butt. She also said there were 2 round barrels that were quite large in size and there was a cork hanging out the end of it. She described the cork as a white plug.

50. The policewoman was asked whether the toy firearm that CSD brought down to the paddock was double barrel or single? She said it was “double together side-by-side” not “over and under” and there was one plug. The plug was not plugged in to the hole.

51. The policewoman repeatedly stated that to the extent that she could see it, that is protruding beyond the doorjamb, the barrel was 20 to 25 cm long. Her evidence is also that the barrel was pointing directly at her. Subsequently her evidence was that the barrel was pointing directly at her but at an angle.

52. I find it implausible that in what the policewoman stated were effectively two short glimpses, one from outside the vehicle the second from inside the vehicle, while she was scared for her life, she could have made a reasonably accurate estimate of the length of a dark grey cylindrical item protruding from a 10 to 15 cm gap in an inward opening doorway, 20 to 25 m away, in a shadow, not silhouetted and pointing directly at her. Similarly, I find it implausible that the policewoman could have, with any reliability, distinguished the second barrel from the left of the relevant photograph as compared to the fourth barrel from the left, which is of a similar diameter and has a similar size and placed front sight, or even the fifth barrel from the left which has no front sight but is a similar colour and has a similar diameter.

53. The policewoman’s evidence that on the one hand before moving the vehicle from the driveway she observed the barrel pointing at her through the windscreen and that she turned right in DD Street to move towards EE Street is not plausible. Location photographs in evidence show that if the vehicle moved from the driveway onto DD Street and then turned right towards EE Street the vehicle must have reversed onto DD Street out of the driveway. If that was correct then the policewoman could not have observed a doorway of premises across the road through the windscreen when sitting in the driver’s seat as she would have been facing the swing door she had just closed at the rear of the police station.

54. The policewoman said she is certain that the firearm pointed in her direction at the time of the Event was real and did not have two barrels. There is no evidence from any of the four persons in the premises at the time of the Event that any of them at any relevant time either saw or was in possession of a single barrel rifle, whether real or a toy. The evidence is that at the time of the Event CSD was playing with the double barrel toy shown on the far left side of the photograph in page 15 of the Commissioner’s Evidence.

55. The policewoman’s evidence that the toy gun taken to the paddock by CSD had side-by-side double barrels contradicts the evidence of both CSD and Teenager CC (who was at the premises at the time of the Event) who each identified the over and under double barrel toy firearm which CSD took to the paddock area. There is no evidence by any person other than the policewoman of the existence at the premises or elsewhere at any relevant time of any side-by-side double barrel firearm or toy gun.

56. I observe that CSD took the double barrel toy gun to the area near the horse paddock in response to a phone request by Mr BB who had telephoned one of the teenagers at the premises. That teenager had informed him, and he had informed the policewoman that “they say it is a toy gun”. The policewoman's statement recounts:

I have relayed this to the Sgt from Albury. I have then got off the phone. I was still very upset by the incident and did not believe at any stage that it was a ‘toy’ gun that had been pointed at me.

…

57. The policewoman’s evidence is that she was frightened. I find her evidence plausible to the extent that she honestly believed that a rifle had been pointed towards her. However, I find the above discrepancies in her evidence so substantial that much of her evidence lacks plausibility in several respects including identifying a particular rifle in the page 15 photograph from the barrel she said she saw, whether she drove in a forward direction or reversed from the driveway to the street, and her unsupported evidence that the double barrel toy brought to the area near the horse paddock by CSD had side-by-side barrels. The policewoman stated that she was anxious and scared. If this was the case, I find that it may have adversely affected her recollection as to what she saw in the course of the Event and for a period thereafter.

CSD’s evidence

58. The only evidence from CSD before the Tribunal is that contained in the transcript of Detective Kelly’s interview with CSD and some members of his family on the evening of 31 August 2013.

59. CSD’s evidence is to the effect that on the afternoon of 31 August 2013 he and a friend were mucking around. He was chasing his friend who ran outside onto DD Street.

60. His friend was behind a bus parked outside the premises “…directly in front, sort of in front of the gate that (the policewoman) came out of”. CSD said he was “just standing at the door with the gun and I pretended to shoot (my friend) at the time when the policewoman had driven past. CSD said he had the double barrel toy gun and did not point it at the policewoman.

61. CSD saw the policewoman drive around “to the gate” and about 15 minutes later “we” received a telephone call from Mr BB. Apparently the policewoman was upset because apparently he had “shot, held a firearm or whatever at her”.

62. CSD described the door that he was standing at as “partly open, half sort of opened”.

63. At the time of the Event the other two teenagers at the premises were inside in a room from which CSD had taken the toy guns.

64. CSD confirmed that he was holding the double barrel toy gun and his friend who was outside did not have anything in his hand. CSD described the double barrel toy gun he was holding as a “cap gun”.

65. Detective Kelly asked CSD “... today when you saw her, did you at all point a firearm at her? Did you see if she saw you holding a firearm? “.

66. CSD said “No I didn’t even take notice, we were just playing.”

67. Detective Kelly – “Do you think that something like that, pointing a toy firearm or a real firearm at the door to a public place could be perceived or seen by someone else as being…”

68. CSD – “I don’t know… I’m on my own property.”

69. Detective Kelly – “… you obviously saw her today…”

70. CSD – “yeah”

71. Detective Kelly – “… and you never thought about pointing the firearm at her at all?”

72. CSD – “no”.

73. Detective Kelly – “why do you think it’s come about that the police have been called out? Do you think this is has all been, this is, the word I’m looking for, incorrectly perceived or its…”

74. CSD – “I think it’s a big misunderstanding. I never pointed a gun at (policewoman’s name).”

75. CSD identified the toy he was playing with at the time of the Event as the toy he took down near the paddock. I find that the description by CSD of the toy matches the toy double barrel gun on the far left of the photograph at page 15 of the Commissioner’s Evidence.

76. CSD said that the only other gun he had at the time of the Event was a little pistol which was a cap gun. I observe that that toy pistol was also seized by the police.

77. During the course of the interview Detective Senior Constable Gray said to CSD “all right. What do you think happens to people who do that, who point guns, toy guns at people driving past?”

78. CSD replied “I don’t know, they may get charged.”

79. Detective Gray – “Who by?”

80. CSD – “Police officer or whatever obviously.”

Teenager CC’s evidence

81. From 1:20 am until 2:12 am on Sunday, 1 September 2013 Detective Kelly, accompanied by another Detective carried out a recorded interview with Teenager CC.

82. In the course of the interview Teenager CC said:

1. he was at the premises for some time during the afternoon of 31 August 2013 together with CSD and two other named teenagers;

2. During the course of the afternoon he generally stayed downstairs. (CSD) brought a double-barrelled cap gun down from upstairs. He was walking around in the front area, in the lounge room and was shooting caps in the gun. The gun looked like a shot gun, it had two barrels, one underneath the other and was about half a metre long. He shot inside the house;

3. he did not go outside the premises (while CSD had the toy gun);

4. he did not see CSD point the gun at the door or at a window as he was facing in a different direction;

5. he has seen CSD use the toy gun but CSD has never spoken with him about using a real gun nor has he ever seen him fire or use a real gun.

83. In oral evidence Teenager CC identified the toy gun that CSD was playing with on 31 August 2013 as the double-barrelled gun shown on the extreme left of the photograph on page 15 of the Commissioner’s Evidence. He said it was the same toy gun that he saw CSD take down to show the policewoman at the paddock after the Event.

84. Teenager CC was asked whether he could recall seeing CSD holding a gun with a cork on the end of it. Teenager CC replied “no”. Teenager CC did not think that what CSD was holding was a real rifle. However, it was possible that CSD could have gone somewhere else in the premises and done something that Teenager CC did not see.

85. Teenager CC did not see any weapon in the premises that day that had side-by-side barrels. Teenager CC could not recall seeing anything that looked like a real weapon that day.

86. Teenager CC said that he knew that CSD’s father had a gun – he thought he had 4 guns, he didn’t know where they were kept.

B   Intimidating the policewoman whilst armed with sticks and a cricket stump

87. The relevant Reasons in the Refusal Notice were:

Police then questioned (name of the policewoman) who advised them there have been several occasions where her and her family have felt intimidated, harassed and threatened by your behaviour. She advised police you had been seen by her on numerous occasions looking into the rear yard of the police premises. Additionally other witnesses have observed you walking up and down the footpath outside the front of the Police Station in an intimidating manner, armed with sticks and a cricket stump abusing family members of (name of the policewoman). (name of the policewoman) advised police her and her family hold fears for their safety due to your actions.

88. It is common ground that although the relationship between the policewoman and CSD had not been negative until a few weeks before the Event, circumstances changed and in the last few weeks before the Event there was a series of disputes between the policewoman and CSD. Each of the policewoman and CSD provided different reasons for the disputes.

89. In the evidence before the Tribunal, the first occasion the reference to “other witnesses” having observed CSD “walking up and down the footpath outside the front of the police station in an intimidating manner, armed with sticks and a cricket stump abusing family members” of the policewoman, appears is in the statement Detective Kelly prepared for the court hearing in support of his application for an AVO against CSD.

90. No evidence of any witness was put to the Tribunal in support of the facts alleged in the above extract. Having regard to the material before me I am unable to find any basis for the statement and I reject it.

91. I also observe that the statement in relation to sticks and a cricket stump under the heading “Decision” alleged that CSD was intimidating the policewoman. I find that there is no basis in the evidence before the Tribunal for that allegation.

C   Unauthorized access to one of your father’s firearms

92. I have regard to the direct evidence of the policewoman to the effect that a rifle barrel was pointed at her from the premises and the evidence of CSD that he was holding a toy double barrel gun in a doorway of the premises at the time of the Event.

93. I also have regard to the parties agreeing that there were four rifles at the premises at the time of the Event.

94. Detective Kelly made a statement which included:

The PIN code was easily identifiable to Police upon entry into the storage room.

95. The detective repeated that statement on multiple occasions and it was used by delegates of the Respondent to make decisions adverse to the interests of CSD and his father. I observe that that statement has no evidentiary basis and is contrary to the evidence before the Tribunal including Detective Kelly’s oral evidence.

96. I observe that the evidence of both CSD and his father was that CSD had no knowledge of either the pin code which would provide access to the safe or the location of the code. I also observe that Mr AA’s evidence was that the alternate method of opening the gun safe was to use a key and he said that he hid the key. CSD’s evidence was that he had no knowledge of the location of the key.

97. I find, on the material before me that there is no evidence that CSD had unauthorised access to any of his father’s firearms at the time of the Event or at any other time.

D   Continuing to point the firearm towards the policewoman

98. The evidence of the policewoman is that some unidentified person pointed a rifle barrel directly at her from a doorway of the premises. CSD’s evidence is that he was playing with a toy firearm in a doorway of the premises at the time referred to by the policewoman. CSD denied that he pointed the toy rifle at the policewoman.

99. CSD’s evidence in his interview by Detectives Kelly and Gray is that he was playing a game which included firing the toy gun at a friend who was outside the premises on the street almost directly opposite the driveway being used by the policewoman. The friend’s sworn evidence is that he did not go outside the premises onto the street at that time

100. The policewoman gave sworn evidence to the Tribunal. I found that part of that evidence in relation to the reliability of her description of the firearm barrel and her identification of a particular firearm was implausible for reasons set out above.

101. There was no evidence before me by way of a statement from CSD nor did CSD give any oral evidence.

102. I observe that at Book 1 of 3 of the Applicant’s Evidence there is a character reference in favour of CSD. The reference was given on 18 September 2013 and the referee states that he/she is “aware of the circumstances he (CSD) is faced with.” That reference was given more than two years before the start of the hearing in this matter and presumably the circumstances referred to relate to the application for an AVO against CSD. The reference is in favour of CSD. However, as the circumstances said to be known to the referee are not detailed and as the reference is several years old I cannot give it great weight in these proceedings.

103. I find from the material before me that it is possible that CSD deliberately or negligently pointed the barrel of his toy double barrel gun at the policewoman from a doorway of the premises and that the policewoman believed that a real firearm was being pointed at her.

104. The policewoman’s evidence as to the duration of the period during which she saw the barrel pointed at her is very short, possibly a few seconds. Accordingly, I find that there is no basis for the statement in the Refusal Notice that CSD “continued to point the firearm toward (name of policewoman) direction when you knew she was in the location”.

E   Possession and use of a firearm being a conditional privilege

105. The statement “… the principals (sic) and objects of the Firearms legislation confirm that firearm possession and use is a privilege that is conditional, on the overriding need to ensure public safety by imposing strict controls on same” is not referred to in the “Reasons”.

106. However, there is no dispute that section 3 (1) (i) provides “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety“ is the first of the underlying principles of the Act.

F   Whether the public would hold concerns if CSD was authorised to possess and use a firearm, and the applicable law

107. The Refusal notice states:

… I am satisfied the public would hold real and justified concerns where you to be authorised to posses and use of firearms under the authority of a minors permit. (sic)

My understanding of the applicable law is that:

Section 29(4) of the Firearms Act 1996, prescribes the Commissioner may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest.

Public interest test

108. A discussion of relevant case law with respect to public interest was set out by the ADT in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 including the following:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

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

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25], the Appeal Panel said that the ‘public interest’ “is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”.

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions….

109. Section 3 provides that the first of the underlying principles of the Act is that firearm possession “is conditional on the overriding need to ensure public safety”.

110. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 DP Hennessy said at [27] and [28]:

…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

111. This principle has been referred to and followed in numerous decisions of both the ADT and the Tribunal.

112. I observe that section 29 (1) of the Act provides:

(1)  A permit 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.

Fit and proper test

113. The Act provides:

11   General restrictions on issue of licences

(1)  The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3)  A licence must not be issued unless:

(a)  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,

114. The issue of whether a person is “fit and proper” in various contexts has been dealt with on numerous occasions by courts and tribunals.

115. In Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Dixon C.J., McTiernan and Webb JJ said at [9] that the expression 'fit and proper person' generally involves honesty, knowledge and ability.

116. In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 the High Court observed that the expression "fit and proper person" takes its meaning from its context. 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.

117. The question of whether CSD is a fit and proper person involves a value judgement to be made in the context of the particular activity to be undertaken. In Wilkinson v Commissioner for Police [2002] NSWADT 59 the ADT said:

25. As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

118. I accept that the discretion in this case relates to a grant of a Minor’s Permit which if granted would enable CSD to use certain firearms under certain conditions, rather than exercising a discretion about revocation. However in my opinion the discretion should be exercised in a way which promotes the principles and objects of the Act.

119. In exercising the discretion, it is necessary for me to consider the material before me.

120. I am aware that CSD has obtained a Statement of Attainment in recognition of his successful completion of a firearms licence qualification course. However, I am also aware that the only direct evidence provided to the Tribunal from the Applicant is that contained in an interview in which he took part some three years ago. I have no material before me regarding CSD since August 2013 other than that one of the two charges against him was withdrawn and the other was dismissed.

121. I have regard to the evidence put before me in respect of disputes between CSD and the policewoman, to the discrepancy in evidence between CSD and Teenager CC as to whether or not the latter was playing outside the premises at the time of the Event, and as to whether or not CSD pointed a firearm, albeit a toy, at a serving police officer.

122. I have made findings against some of the reasoning in the Refusal Notice. However, I agree that if CSD did point the toy gun towards the policewoman and if he continued that action when he knew she was in the location, that would demonstrate a serious lack of judgement and regard for public safety including that of his own personal safety. This matter involves an application by CSD but without any meaningful input in terms of a statement or evidence from CSD (or anyone else) as to his current circumstances.

Decision

123. Having regard to all of the material before me and my above findings the correct and preferable decision of the Tribunal is that I do not have sufficient evidence before me to enable me to have confidence that if CSD had access to firearms he would not pose a risk to public safety.

124. The Commissioner’s decision under review to refuse CSD’s application for Minor’s Firearm Permit is affirmed.

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: 21 September 2016