Dale v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 134

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Dale v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 134
Hearing dates:	26 June 2019
Date of orders:	10 July 2019
Decision date:	10 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Isenberg, Senior Member
Decision:	The decision under review is set aside. In substitution, order that the Commissioner issue a Category A firearms licence to Mr Dale for the genuine purpose of target shooting.
Catchwords:	Firearms licence – theft of firearm from unapproved mobile shooting gallery - unsupervised staff– charges dismissed -public interest
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	Bazouni and Ors v Commissioner of Police [2002] NSWADT 100 Bevan v Commissioner of Police [2004] NSW ADT 1 Bottomley v Commissioner of Police [2005] NSWADT 211 Brosowski v Commissioner of Police [2003] NSWADT 182 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 CXJ v Commissioner of Police, NSW Police [2017] NSWCATAD 39 Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31. Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Whalan v Commissioner of Police, NSW Police Force [2018] NSWCATAD 87
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Justin Dale (Applicant) NSW Commissioner of Police (Respondent)
Representation:	Solicitors: Hartmann & Associates (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/00037243
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. The Applicant, Justin Dale is a clay shooting enthusiast, having competed at national and international level in the sport. His partner, Susan Trindall has also competed in the sport in the Olympics and in the Commonwealth Games.

2. Mr Dale has held a firearms licence almost continuously from the time he was 16. His most recent licence - a Category A licence - was granted on 15 March 2013 for the genuine reasons of Target Shooting and Business or Employment. That licence expired on 9 April 2018; consequently, he was obliged to lodge a fresh application for a Category A firearms licence, which he did on 18 July 2018. The application was refused on 26 November 2018, and that decision was affirmed on internal review.

3. Mr Dale now seeks review of the Respondent’s decision to refuse him a firearms licence.

Relevant legislation

4. Section 11(3)(a) of the Firearms Act 1996 (the Act), prescribes that the Commissioner must not issue a licence unless 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.

5. Section 11(3)(c) of the Act, prescribes that the Commissioner must not issue a licence unless satisfied that the storage and safety requirements set out in Part 4 are capable of being met by an applicant.

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

Consideration

7. In determining that it was not in the public interest that Mr Dale be granted a firearms licence, the Respondent placed significant weight on Mr Dale having been convicted of the offences of 'Operate unapproved shooting range' and 'Give firearm to person not authorised by licence/permit' on 19 April 2018 at Penrith Local Court. On appeal, on 19 June 2018 the charges, while proven, were dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

8. However, it is an applicant’s conduct, not the fact of a conviction (or otherwise), which is to be taken into account in the present application: Bazouni and Ors v Commissioner of Police [2002] NSWADT 100 at [21], and more recently, Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31. Consequently, it is necessary for me to explore the circumstances of the charges.

Events which gave rise to the charges

9. Mr Dale and Ms Trindall operate a business, J & S Rides & Games (J & S) on an itinerant basis as traveling show people. For some years, one of their activities was a mobile shooting range (MSR) known as '4 Ducks Down', which utilized air rifles, and was frequented mostly by young men. On 31 December 2017, as part of the New Year festivities, Mr Dale was operating the shooting range and another game in the carpark behind the Penrith Panthers Club, where there were about 20 - 30 games, and an estimated 10,000 people in attendance. At the MSR there were 6 firearms which were secured by a metal pole, a metal strap and a heavy bolt. During a power outage one of the range’s air rifles was stolen.

10. Mr Dale was assisted at the shooting range that evening by Chauntel Stephenson, who did not hold a Category A firearms licence and was not authorised to operate a shooting range. She had undertaken a firearms safety course but had not finalised a firearms licence application. At the time of the theft the shooting range was under the sole care of Ms Stephenson, while Mr Dale, on his evidence, was attending to the power, and while he pursued the thief or thieves.

11. Ms Stephenson provided a written statement to the effect that prior to the firearm being stolen, Mr Dale was at all times directly supervising her, and that he was within the confines of the MSR with her, until the power was cut and they found themselves in darkness. She said Mr Dale left the shooting range to check the range’s power supply, as there was clearly power to all the other exhibits. Mr Dale was away from the interior of the range for no more than 2 minutes, she said, until the power was restored, and Mr Dale entered the range a matter of seconds later. It was about 10 seconds after he returned that she noticed one of the firearms was missing. She said she informed Mr Dale immediately, and he straight away left the range to try to locate anyone carrying the missing firearm. Within a minute or two of Mr Dale leaving the range, another customer called over 2 passing police officers and, Ms Stephenson said, she told them of what had occurred. She said Mr Dale returned shortly thereafter, having been unable to locate the missing firearm. In all, she estimated that she was in the range, without direct supervision, for about 2 minutes - the time between Mr Dale chasing the thieves and the police arriving.

12. Ms Stephenson reportedly told the attending police that that she had turned her back on the customers to fix a lighting issue when the firearm was stolen and that two people ran from scene. The police record (COPS event E240691997) makes no mention of Mr Dale being present, fixing the power or running after the perpetrators. In her evidence she denied telling police that she was the only one present. The attending police were not called to give evidence.

13. Ms Stephenson gave evidence by conference telephone. At first she was incoherent and was unresponsive to questions asked in cross-examination or by the Tribunal. After a period to compose herself, she continued with her evidence. She said that she had previously worked for J & S but had not worked at the range before. She thought Mr Dale owned 2 other activities at Penrith that night, but he was only working at the range with her. She said the lights “kept going off”. Although the power box was just behind the range, she could not see what Mr Dale was doing but the power came back on and he returned. He was gone only a couple of minutes. She said she did not see anyone trying to unbolt the gun or trying to dislodge it. She only noticed it was missing when the lights came on, when Mr Dale returned. She told him a gun was missing and she agreed it could have been some time before she had noticed, but she was “pretty sure” all the firearms were there before Mr Dale went to check the power box. She had panicked. She did not remember if Mr Dale continued operating the range; she could not answer whether he had called the police.

14. SGT Kerrie Smith, a licensing officer who attended the scene, said she could not recall if Ms Stephenson said anything about what Mr Dale had been doing. Ms Stephenson had pointed out Mr Dale who was, at the time, about 20 - 30 metres away.

15. Mr Dale provided a statement in which he wrote that the air rifle had been stolen when he was at the back of the range fixing power leads. He believed the leads kept being deliberately unplugged by the same group of young men who had taken the firearm and ran off with it. He wrote that when he returned to the shooting range he had seen that the air rifle was missing, although, in his evidence he said that Ms Stephenson told him the firearm was missing. He said that, on the spur of the moment, he decided to run after the young man to get his air rifle back. He understood his actions in leaving Ms Stephenson in the range on her own were wrong but he thought he needed to find the air rifle as there was a very large crowd. He said in his evidence that he was away from the range in search of the firearm for about 20 - 30 minutes.

16. In his evidence Mr Dale said that he had only 2 activities at Penrith that night - the shooting range and a basketball game, located next door where he had 2 other staff. He and Ms Stephenson had been at the range from about 3 pm. He said that if he needed the toilet or a break, the range would be shut down and Ms Stephenson would not be left in charge of the range on her own.

17. Mr Dale said in his evidence that the power box was about 30 feet away, and while he attended to the outage the range was in darkness. He did not think it was necessarily obvious to Ms Stephenson that a firearm was missing, but he said that she told him it was missing and that one of the young blokes who had been there had taken it. Ms Stephenson did not tell him in which direction the thief had gone. He panicked. He did not ask Ms Stephenson if any ammunition had been taken. He was concerned that the firearm was in a very busy area.

18. He said that when he was unable to locate the thief he returned to the range and continued working. Ms Stephenson was so upset he let her just sit out the back.

19. The Applicant provided a letter from Michael Kruger-Davis, a psychologist, dated 11 April 2018. Mr Kruger-Davis also gave evidence. There were a number of concerns with the evidence. Firstly, the methodology employed in reaching his opinion was problematic - he had interviewed the Applicant by phone on 2 occasions and had conducted a ‘facetime’ interview to confirm his identity. It was difficult to ascertain how he administered the various tests to assess the Applicant’s mental state/depression by such methods. He also provided comments about the Applicant’s previous dealings with police, the court case, confusion about in whose names the approvals to operate a MSR were held, and the “lack of understanding of the itinerant nature of carnival operators”. These are matters, not for a psychologist, but for the Tribunal. Further, the history which he summarised was potentially misleading, referring to the operation being “targeted by a band of youths who caused distractions”. He attributed this description of the events to the Applicant, but Mr Dale’s own evidence was not nearly so colourful. Finally, he recommended that the Applicant’s firearms licence be restored. Again, that is not a matter for him. I accept though his evidence that Mr Dale acted instinctively in pursuing the thieves, and that he left Ms Stephenson at the range unsupervised, without thinking.

20. There was no dispute that Mr Dale had left Ms Stephenson, a person who was not licensed, in charge of the range. The evidence was that this was for 2 periods – once, or possibly more - when he went behind the range to restore the power. I accept that this was inappropriate, but it was only for a very short period of time. Mr Dale’s clear evidence and that of Ms Stephenson was that, during the afternoon and evening whenever Mr Dale left the range, the range was closed.

21. More significantly, Mr Dale also left Ms Stephenson in charge of the range while he attempted to locate the firearm. I have accepted that he did so, instinctively, and did not intentionally leave Ms Stephenson in contravention of his obligations. One might speculate that, had he not attempted to locate the firearm, he may be the subject of criticism, especially given the large crowd and the festive atmosphere of New Year. The evidence was that a member of the public called patrolling police over, and that Ms Stephenson was only then without supervision for a couple of minutes, even though Mr Dale may have been absent searching for the firearm for as long as 30 minutes. There was no evidence whether the patrolling police continued Mr Dale’s search, and the firearm remains unrecovered.

22. The Respondent was critical of Mr Dale for not calling the police when he learned of the missing firearm. However, the evidence was that within a minute or two of Mr Dale leaving the range to search for the missing firearm amongst the crowd, another customer had called over 2 passing police officers, to whom Ms Stephenson reported the theft. On learning of the theft Mr Dale elected to immediately seek recovery of the weapon, and although his search was unfruitful, I accept that it was his intention to recover the firearm to prevent any threat to public safety.

23. The Respondent also was critical of Mr Dale for then resuming operation of the MSR. However, the theft had been reported to police; he had not been able to locate the firearm; and the matter was in the hands of the police. SGT Smith, the licensing officer, had attended and they had made arrangements for the production of the permit the next day.

What licences were held relevant to the mobile shooting range?

24. SGT Smith provided a statement which included photographs of the range. She also gave evidence about her search of the Register for licences relevant to the range.

25. Various licences were held by Mr Dale, Ms Trindall, and Mr Dale’s parents. Mr Dale gave evidence that his mother had owned a similar business (“Dale’s Amusements”) since before he was born. He and Ms Trindall used to travel with Mr Dale’s parents around the country to carnivals.

26. From the records produced, Dales Amusements had a MSR permit from 19 December 2003. The permit holder was Mr Dale’s mother, Anna. From 16 April 2004 the permit was replaced by a permit in the name of Dales Amusements (Caravan). Dales Amusements (Tent) was issued a permit, with Ms Trindall as the approval holder. Both permits expired on 18 December 2006. Mrs Dale had another permit which also expired on that date, in the name of Ranj Dales Amusements. Thereafter there were further permits in the name of Ranj Amusements, also recording Mrs Dale as the permit holder. The last of these expired on 17 December 2017.

27. The permit for J & S, with Ms Trindall as the approval holder, expired on 17 December 2012. Mr Dale conceded in cross-examination that, had that permit been displayed, as is required, he would have been able to see that it had been out of date for more than 5 years. He also agreed that it was unlikely that the range had been inspected during that time, otherwise the expired permit would have come to the attention of the Registry.

28. Mr Dale told SGT Smith at the scene that he had an approval for the range in the name of Dales Amusements in his trailer. When he attended Penrith Police Station the following day, as requested, he only provided his Category A firearms licence. Dales Amusements did not hold a current approval and the last MSR permit issued to J & S had expired on 17 December 2012.

29. Ms Trindall provided a statement in which she said that J & S is “her” business. At some time before 31 December 2017, she said, she had a “quick look” in a file which she keeps the shooting range permits and any firearms paperwork including shooters licences. Ms Trindall said that in the file she also had copies of Mr Dale’s mother’s shooting range permits, which she explained in her evidence, was because from time to time they ‘help each other out’, when the other range is unavailable for a booking. She thought she must have “glimpsed” Mrs Dale’s permit and not hers, and took note only of the year - 2017. She did not realise that that permit (in the name of Ranj Amusements) had also expired earlier in December 2017. It was not until the next day that she realised her own permit had also expired.

30. Ms Trindall said it was an ‘honest mistake’. She said she was at fault for telling Mr Dale the permit was current. She said it was also her fault for not reapplying for the permit but she did not remember receiving a renewal. In former years, she said, the Registry always had her permit and Mrs Dale’s permit classed as the same company, because she believed, they used the same mailing address because of the itinerant nature of their work. SGT Smith gave evidence that ordinarily, when licences are about to expire the Registry sends out a renewal, but she was unable to confirm if a renewal was sent to J & S.

31. The nature of their business causes the Applicant and Ms Trindall to be continually travelling around the country. While Mr Dale’s previous application documents nominated a Lennox Heads address (belonging to a relative) as being his residential and firearm safe storage addresses, he specifically noted “highways of Australia” as the storage location of his firearms. The Respondent conceded that his giving the Lennox Head address was not necessarily to mislead, but rather, to satisfy legislative requirements in circumstances whereby he had no fixed place of abode due to the nature of his employment. Moreover, the form spelt out that the firearms would not in fact be stored at that address. No issue has been raised in the present matter about safe storage of the firearms.

32. While it was the responsibility of Ms Trindall, as the nominated person, to ensure the approval remained current, as the operator of the shooting range, and given his lengthy history of operating a MSR it is unlikely that Mr Dale was unaware that there no current approval for the range, and indeed, there had not been an approval in the name of J & S for 5 years. Having said that, I accept his reliance on Ms Trindall to manage that aspect of their affairs.

History with respect to alleged firearms transgressions

33. In the decision under review the Respondent relied not only on the breaches arising out of the events of 31 December 2017, but also that that was not the first time that Mr Dale had “come to notice for breaches of firearms legislation”. The Respondent referred in the decision under review to 2 incidents said to involve Mr Dale.

34. One was an event in October 2003, now over 15 years ago, when police attended the Albury Showground and conducted an inspection of two mobile shooting galleries being run by “Dales’ Amusements”. Firearms were found to be unsecured at both ranges. The Respondent claimed that the Applicant had been issued a MSR approval for one range on 12 October 2000, but this was not apparent from the material before me. The second MSR was reportedly owned by Mr Dale and Ms Trindall, but this also was not apparent from the police record of the attendances (COPS event E18718520), the account being given by Ms Trindall that she was unaware who was going to get approval to run it. A person operating the second range was not the holder of a firearms licence. Police interviewed the Applicant’s parents and Ms Trindall. The Applicant, however, was not present on either of the two occasions police attended. I am unable to place any weight on this matter.

33. Another incident in May 2004 was referred to in the original decision but this also concerned “Dales Amusements”. While Mr Dale was present, it was clear that the police concerns (COPS event E20887662) related to the conduct of the Applicant’s parents and their business. I also place no weight on this information.

Other considerations

36. Mr Dale is 40 years of age and has no criminal convictions. He has been authorised to use firearms for many years. Mr Dale said in his evidence that he now does not seek a firearms licence (Category A) for the genuine reason of Business or Employment, as they have disposed of the MSR. He now only seeks the licence for the genuine reason of target shooting.

37. In the decision under review the Respondent observed that as it is a condition of a MSR permit that the approval be displayed while the range is in operation, and that the permit had expired 5 years before the events of 31 December 2017, there was “the very real possibility” that was not the only occasion Mr Dale operated an unapproved range. There was no evidence to support that view, and the conclusion is entirely speculative.

38. The Respondent submitted it was significant that Mr Dale “had shown no contrition for any of his breaches”. The Applicant’s solicitor tendered a copy of a letter addressed “to whom it may concern”, which SGT Smith agreed, appeared to be a letter of apology dated 9 February 2018 and she confirmed that it “looked familiar” to her. I accept that it is likely the letter was either provided directly to police, or was shown to police, probably in the course of the criminal proceedings. In either event, it is inconsistent with an assertion that the Applicant had “shown no contrition” as the Respondent contended.

39. The Respondent noted that the Applicant had “barely acknowledged any wrongdoing”, but this is also inconsistent with his guilty plea in the criminal proceedings.

40. The Respondent submitted that the Applicant had demonstrated a lack of candour in previous interactions with police. In the decision under review the delegate was critical of the Applicant not having told his version of the events to attending police. The COPS event did not record any conversation with Mr Dale at all, presumably because he was absent trying to locate the perpetrators at the time of their attendance. When SGT Smith attended the scene, her focus, as a licensing officer, was in relation to the permit and licences.

41. The Respondent considered in the decision under review that “it could be construed that he was evasive and deceptive in the way in which [he] dealt with police, especially in view of the version of events [he was] now willing to promote”. There was no dispute, however, that Mr Dale had attended police on the day after the events, as requested. He was unable to produce the permit because he did not have one. I do not consider that to amount to “evasive and deceptive” conduct. Further, his version of events has been consistent: he was momentarily attending to the power outage, leaving Ms Stephenson in the range and that it was during that time that the firearm was stolen. It has also been his consistent evidence that he left the range in search of the weapon, again leaving Ms Stephenson alone.

42. There is an expectation that a firearm licensee will demonstrate a greater degree of disclosure and cooperation when questioned by police in relation to a serious matter: CXJ v Commissioner of Police, NSW Police [2017] NSWCATAD 39 at [70]. However, in that case, CXJ was unhelpful in in his interactions with police investigating a stabbing. Further, CXJ was a person with an extensive criminal history. In this matter the delegate was critical of Mr Dale declining to be interviewed by police, but I do not consider, in the circumstances, that in doing so Mr Dale was doing anything other than exercising his right.

43. It does not follow, as was contended, that such actions raise doubt about his honesty.

Other consideration of public interest

44. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety; strict controls on the possession and use of firearms are imposed in the interests of public safety.

45. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner and hence the Tribunal on review] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.

46. In Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 (Jameson) the Tribunal referred to the issue of public interest allowing for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the context of that matter, and given the objects of the Act as stated in s 3(1), the primary consideration in relation to the public interest must be public safety. The Respondent submitted that Mr Dale had already compromised public safety at an event held for family entertainment. It may well be that the firearm would have been stolen even if had Mr Dale remained at the range while Ms Stephenson attended to the power.

47. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". 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. See Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. The likelihood of risk is to be assessed by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41]. The evidence is of offences arising out of the events of 31 December 2017. The explanation about leaving Ms Stephenson in charge of the range while Mr Dale attended to the power outage during which time the firearm was stolen is plausible. Further, I have accepted that his action in searching for the stolen firearm, thus leaving Ms Stephenson unsupervised, was instinctive.

48. I was referred to Whalan v Commissioner of Police, NSW Police Force [2018] NSWCATAD87 at [54] in which the Tribunal held that if firearms remain unaccounted for, this is a significant risk to public safety. I have accepted though, that Mr Dale endeavored, at the relevant time, to retrieve the firearm.

49. The public interest also requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at [34] and Bottomley v Commissioner of Police [2005] NSWADT 211 at [20]. I have accepted in this matter though, that Mr Dale, perhaps naively, relied on Ms Trindall to organise all the paperwork for the family’s business, and that his leaving Ms Stephenson in charge at the range was incorrect but an instinctive action. No issue was raised with respect to safe storage of Mr Dale’s firearms.

50. I accept that there may have been a financial impact upon Mr Dale and Ms Trindall in that the MST has now apparently been disposed of and that this may affect their income, although there was no evidence to support that contention. While loss of income is not an irrelevant factor in the exercise of discretion as to the licensing scheme under the Act it is to be weighed against the primary factor of the overriding need for public safety and also against all other relevant considerations: Bevan v Commissioner of Police [2004] NSW ADT 1 at [26]. I accept that the theft of the air rifle has, in addition to the financial cost, put stress on the family. On 28 February 2018 Mr Dale’s firearms licence was suspended. The licence subsequently expired before a revocation notice could be issued. The effect is that he has been without a licence for now nearly 18 months.

51. An applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety: Comalco Aluminium (Bell Bay) Ltd v O'Connorand Others (1995) 131 ALR 657. Both Mr Dale and Ms Trindall submitted that their children have been clay target shooting with them and have said they would like to be able to engage in the sport as a family. I accept this to be the case, given the impressive family history in the sport.

52. I find that there is virtually no risk that Mr Dale will in the future fail to follow the prescribed requirements in relation to operating an unapproved shooting range, if for no other reason that the MSR has apparently been disposed of. Also, in my view, there is virtually no risk that he might leave an unauthorised person with a firearm, again, if for no other reason than the MSR has been disposed of. I am also comfortably satisfied that there is virtually no risk that other prescribed requirements will not be adhered to.

53. I therefore consider that that it is not contrary to the public interest for Mr Dale to hold a category A firearms licence.

Conclusion

54. Public safety is the primary focus of the public interest issue and of the Act generally. In light of all the evidence and the relevant authorities, I find that the Applicant having a Category A firearms licence for the genuine purpose of target shooting would not create a danger to public safety or be contrary to the public interest.

ORDERS

1. The decision under review is set aside.

2. In substitution, order that the Commissioner issue a Category A firearms licence to Mr Dale for the genuine purpose of target shooting.

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

Registrar

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: 10 July 2019