Finlay v Commissioner of Police

[2020] NSWCATAD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Finlay v Commissioner of Police [2020] NSWCATAD 5
Hearing dates:	7 January 2020
Date of orders:	14 January 2020
Decision date:	14 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Emeritus Prof GD Walker, Senior Member
Decision:	(1)   Decision under review set aside. (2)   A category AB firearms licence is to issue to the applicant, but only if and when the Commissioner is satisfied that the applicant’s safe storage arrangements meet the statutory requirements.
Catchwords:	LICENSING – firearms – licence revocation – domestic circumstances – public interest – safe storage – whether real and appreciable safety risk.   WORDS AND PHRASES – “premises”
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW)
Cases Cited:	AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty limited v SafeWork New South Wales [2017] NSWCA 42; Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657; Commissioner of Police v Toleafoa [1999] NSWADTAP 9; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Director of Public Prosecutions v Smith [1999] 1 VR 63; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70; Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; O’Sullivan v Farrer (1989) 168 CLR 210; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149; 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.
Category:	Principal judgment
Parties:	Donald A Finlay (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Zucker Legal (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/00247479
Publication restriction:	Nil

reasons for decision

1. The applicant Mr Donald Allan Finlay applied to this tribunal on 8 August 2019 for review of a decision dated 10 July 2019 by a delegate of the respondent to revoke the applicant’s category AB firearms licence, which had been issued on 23 August 2017, to expire on 23 August 2022. The applicant had held an AB licence since July 2012 for the purpose of primary production at his large pastoral property at Mullaley, New South Wales. No firearms have ever been registered to him.

2. The applicant’s son, Mr Ricky Ward Finlay, lives on the same property, in a separate residence. In 2009 he was found guilty of a number of firearms possession and storage offences. He was also subject to an apprehended violence order (AVO) on 3 June 2009, to expire on 31 August 2009. On the basis of those charges and the AVO, he was issued with a firearms prohibition order under s 73(1) of the Firearms Act on 27 June 2018.

3. On 7 March 2019, Ricky Finlay was arrested and charged with a number of offences, including participating in a criminal group or contributing to criminal activity, and stealing property as a clerk or servant in connexion with his links to a criminal group involved in supplying prohibited drugs at Gunnedah.

4. It was alleged that he stole fuel from the applicant and provided it to two co-accused who were involved in the distribution of methylamphetamine, and who supplied him with drugs. He is currently subject to a conditional bail order in connexion with those offences, a condition of which is that he reside at the property with his parents, including the applicant.

5. On 8 November 2018 the applicant’s licence was made subject to a special condition that “firearms are not permitted to be possessed or stored at the residence of the licence holder or an address accessible by Ricky Ward Finlay, date of birth 17/12/1971”. The applicant sought an internal review of the decision to impose the condition. His then legal representative submitted that the condition was both unnecessary and excessive, and that the applicant was aware of his responsibilities regarding firearms safe keeping and preventing unauthorized access to them.

6. The officer adjudicating the internal review set aside the special condition and instead revoked the applicant’s firearms licence. That decision to revoke is the subject of the present review application.

Applicable legislation

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

8. Section 11(3)(c) provides that a licence must not be issued unless “the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant”.

9. Section 24(2)(a) states that a licence may be revoked “for any reason for which the licensee would be required to be refused a licence of the same kind”, while s 24(2)(d) authorizes revocation “for any other reason prescribed by the regulations”. Clause 20 of the Firearms Regulation 2017 provides that “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

10. Section 74 sets out a number of consequences applying to persons who are made subject to a firearms prohibition order. They include: “(6) A person who is subject to a firearms prohibition order is guilty of an offence if a firearm, firearm part or ammunition for any firearm is kept or found on premises at which the person is residing”. Such a person must also “not acquire, possess or use a firearm”: s 74(1).

11. The issue in this case is whether the correct or preferable decision is to revoke the applicant’s firearms licence by reason of his domestic circumstances, or because the safe storage requirements of the Act cannot be met by the applicant, or because it is not in the public interest for him to hold a licence, or for any of those reasons.

The evidence

12. The respondent called no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1).

13. The applicant relied on his written statement dated 28 October 2019, which began by explaining that he was born in 1946 and has been a farmer and grazier all his life. He grew up on the Mullaley property and has always lived there. It is the combination of nine farms that have been acquired over the years and measures about 3700 ha. It is divided roughly in the middle by a road called B**** Way and is 90 percent flat cleared land. The family mostly grows crops and fattens livestock. They rely on rainfall for water and crop growth, but at present the business is under pressure because of the extended drought.

14. He and his first wife divorced in about 1996 and had three sons, one of whom lives in Queensland, while the other two work on the property. Their areas of responsibility are separated by the main road. The applicant manages the whole property and the business conducted on it. He is now married to his second wife, Tracy.

15. There are currently three dwellings on the property, as well as another run down cottage, and all share the same B**** Way address. The main homestead is on the western side of the road, and the applicant lives there with his wife. His son Ricky lives in a cottage that is about 150 m from the homestead, which is the applicant’s mother’s old house. His son Todd lives in the homestead on the other side of the main road and some distance from it.

16. The applicant and Ricky work together on the western side as necessary, depending on the tasks being done. All work is under the applicant’s direction. Ricky lives by himself in his cottage and on many days he works alone. He visits the homestead from time to time, but only briefly. Because of the proximity to the main road, the applicant and his wife always lock the house if they are absent, even if merely to go down the paddock.

17. He does not currently have a gun safe because he has not had any firearms for some years. If he recovers his licence he would purchase and install a firearms safe in his bedroom in the main homestead. No-one except him would have the key to it and he would accept a condition to that effect. It would be available for inspection as necessary. Neither of his sons has any reason to go into his bedroom.

18. His father died in 1991, but over the years before his death he had a number of guns which he used to shoot pigs and kangaroos. All were handed in during an amnesty in the mid-1990s and he has not owned a gun since then. There had been visitors, and his sons, who had been properly licensed and who had owned guns, had shot feral animals on the property. He would always give them the appropriate authority and sign the necessary forms to that effect. There were some occasions when visitors engaging in sporting activities but also keeping down the feral animals were asking him to supply them with cartridges. It was for that purpose that he applied for a licence in 2012, which was granted. As time went on those people no longer visited the property, and it is for that reason that he now seeks to make his own arrangements to control feral animals, especially during the drought. For that purpose he needs a licence.

19. The feral animals are mainly wild pigs, kangaroos and foxes. They come out of the hills and across country in large numbers. There is a creek, which in normal seasons runs through the property and another on the boundary. The animals come looking for water and feed. In normal years they do great damage to the crops, but in these drought times they look for water and also eat small crops that the applicant had been able to grow to feed the cattle.

20. By shooting the wild animals, which in the case of pigs can also be dangerous, a producer saves the water for livestock and crops for livestock and for the growing of grain which is used in the food production cycle. In his experience, if a few animals are shot, the others will go away for some time. On the other hand, if the numbers are not kept down, they will come to the property from neighbours’ land where they are still being shot.

21. When cattle are injured or bogged, or are weakened by old age, they need to be put down. It can take some time for a veterinarian to come out from town. The most humane and quick way to put down an injured or weak or bogged animal that will not survive is by shooting it from a rifle at close range between the eyes. Death is instantaneous and there is no danger to any person or to other animals. Those problems can occur with cattle in good times as well as bad.

22. Firearms also needed for shooting snakes. They have a constant risk from, and the presence, of King Brown snakes around the house. They are aggressive and he has had personal experience of being chased and attacked by them. Their bite can be fatal. They are always a problem, but particularly so in dry times. The appropriate weapon is a 410 shotgun.

23. If his licence is restored he would propose to purchase and install a gun safe in his bedroom, have it inspected by police and obtain a small 410 shotgun and a good .22 rifle. He would accept conditions including that no-one but him and his wife were to have access to the bedroom and nobody but him would have a key to the firearms safe. Only one firearm is to be removed from the safe at any one time. If he were using a firearm pursuant to the licence, he would ensure that Ricky Finlay was not in his presence.

24. The applicant also tendered a supplementary statement and affidavit (exhibit A2) which stressed that he intended to use any firearm pursuant to the licence solely in connexion with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned). The most recent visitor to the property was his brother-in-law, who used his licensed firearm to keep down feral animals. It was the applicant’s practice to supply him with cartridges, and he used his licence for that purpose. The last time his brother-in-law was on the property was a few weeks before the applicant’s licence was suspended. There has been no control of feral animal since then, and the number of animals and the extent of damage caused by them has, in his observation, increased. Attached to the statement were 16 photographs of the homestead and the property.

25. In oral evidence at the hearing, the applicant explained that Ricky Finlay has no key to the house. There are only two keys, one for himself and one for his wife, and they keep them on them at all times. Ricky had never attempted to enter the house. That did not interfere with the running of the business because he arranged the day’s tasks by telephone. Ricky takes his meals in his own house and he would abide by any exclusion from the homestead. He had not breached his bail conditions. There was nowhere on the property where a safe could be installed that would be more secure than in his bedroom.

26. In cross-examination he said he had lived in the house since 1978. Ricky was born in 1971 but had never lived there, but instead with the applicant’s parents, but not because of any difficulty in getting along. He took his meals with the grandparents, except at Christmas and other occasions when the whole family met together. Photograph 16 showed three buildings, including a large shed for tractors, headers and trucks. Ricky’s house formed part of the applicant’s property and he had lived there alone since 1994, with some absences.

27. The applicant did not possess any oxy-acetylene equipment, or angle grinders or any other tools that could be used to open a safe. Todd and Ricky had been working with him all their lives, one on each side of the main road. Ricky usually works with the applicant. He had never been shooting on the property, and indeed has never been a shooter. The applicant’s brother-in-law now has another job and is unavailable to perform the culling of feral pests. The applicant now needs a licence so he can acquire firearms himself and buy ammunition for other shooters on the property.

Respondent’s submissions

28. At the hearing the respondent relied in part on written submissions (exhibit R3), which contended that the central issue in the proceedings is the applicant’s domestic circumstances, which raise serious concerns for public safety in relation to firearms and therefore make his continued holding of a licence contrary to the public interest. The respondent maintains that there is no basis for differentiating between the conduct of the applicant himself and the conduct of another, in this case his son Ricky, which may impact on public safety: Tolley v Commissioner of Police, New South Wales Police [2006] NSWADT 149, [31].

29. The respondent submitted that his son Ricky and his associates would pose an unacceptably high level of risk to the public if firearms were stored or used at the property. Ricky works at the property and lives there pursuant to his current bail conditions, and is currently subject to a firearms prohibition order, which creates the potential for risk if firearms are possessed, used or stored at the property.

30. The property is a remote rural holding with multiple tools, including an oxy welder and grinders, which are readily accessible to anyone who wanted to break into a firearms safe and access the firearms to be stored at the property.

31. There is significant animosity between the applicant’s son Ricky and his brother Todd Finlay that has given rise to serious altercations, one of which resulted in Ricky being stabbed and Todd being charged with serious criminal offences in relation to the incident. Todd was ultimately acquitted and a number of witnesses to the incident alleged that Ricky had stabbed himself and then made allegations that he had been stabbed by Todd Finlay. That episode demonstrated the volatile domestic situation involving Ricky and Todd.

32. Ricky’s alleged actions in stealing fuel from his father in order to acquire drugs showed that he was prepared to steal to support his drug habit. That conduct raised significant concerns about the security of any firearms that might be stored on the property if the applicant were permitted to hold a firearms licence. That risk was heightened by the lack of safe storage facilities on the property.

33. During police searches of the property, no firearms safe storage facilities were found. Section 11(3)(c) provides that the Commissioner must not issue a firearms licence unless satisfied that the safe storage requirements under the act are capable of being met by the applicant. On the basis of the material before the tribunal, the applicant is not capable of meeting those requirements; That provided a further basis for supporting the Commissioner’s decision to revoke the licence.

34. The Commissioner also submitted that Ricky Finlay must be viewed as residing with the applicant. The separate dwelling in which he lives forms part of the 3500 ha holding with the five dwellings, including Ricky’s, that stand on it. The dwellings of the applicant and Ricky are in sight of each other and only a short distance apart. Consequently, considering the FPO, the charges currently pending against Ricky involving theft and the provision of fuel to facilitate drug supply, his history and his acrimonious relationship with his brother Todd, and the conditional bail to which he is subject, create a risk too significant for the applicant to be allowed to store firearms at the property where Ricky may from time to time reside or frequent. In addition, the storage of firearms at premises where Ricky resides would contravene s 74A of the Act.

35. It was clear on the evidence that the tribunal could not be satisfied that the continuance of the applicant’s firearms licence would be virtually without risk to the public. It would be contrary to the public interest for the applicant to continue to hold such a licence.

36. At the hearing Mr Zoppo reiterated those points, stressing Ricky Finlay’s criminal history, including the repeated firearms offences in 2008 and 2018 and the firearms prohibition order. The facts showed instances of dishonesty, as when he had denied that certain unregistered firearms belonged to him. There were also the pending charges of stealing fuel from his father in connexion with obtaining prohibited drugs. His animosity towards his brother Todd had led to serious violence in which he was reported to have stabbed himself, inflicting life-threatening injuries.

37. There were concerns as he would be living relatively close to his father’s proposed safe storage. His offences in 2018 showed that he had no concern with firearms law. The reference to “premises” in s 74(6) could and should be interpreted to include the applicant’s residence and Ricky’s separate residence as forming part of the same “premises”. Consequently, a firearms safe in the applicant’s house could conflict with the prohibitions in ss 74(1) and (6). Tolley had been followed in many tribunal firearms decisions and highlighted the risk of Ricky’s residing in the same premises. He had no record of breaking and entering, but a number of other offences. The tribunal had to be satisfied that an applicant could guarantee safe storage: s 11(3)(c).

38. If the tribunal were minded to set aside the revocation, it should be made subject to the condition that a licence would not issue until the existence of safe storage had been established. The case was distinguishable from Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124, as in this case the son had firearms offences and convictions. In any event, the tribunal in that case had affirmed the revocation.

Consideration

39. This tribunal has jurisdiction to entertain this application by reason of s 75(1)(c) of the Firearms Act, which creates a power to review a decision by the Commissioner revoking a licence or permit.

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

41. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3)(c) states that a licence must not be issued unless the Commissioner is satisfied that the Act’s storage and safety requirements are capable of being met by the applicant. Section 11(4)(a) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.

42. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12].

43. The tribunal is to take into account matters indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] – [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60].

44. This case did not involve any dispute about the applicant’s fitness and propriety to hold a firearms licence. The respondent expressly excluded any suggestion of concern with his character. As the case was presented, it resolved into a number of sub-issues which may be considered in turn. They are:

• whether the applicant can satisfy the safe storage requirements;

• whether the applicant’s domestic circumstances (specifically the proximity of Ricky Finlay) warrant licence revocationl;

• whether the fact that Ricky Finlay is subject to a firearms prohibition order precludes the grant of a licence to the applicant; and

• whether it is not in the public interest for the applicant to hold a licence.

Safe storage

45. Under s 24(2)(a), a licence may be revoked “for any reason for which the licensee would be required to be refused a licence of the same kind”. Section 11(3)(c) provides that a licence must not be issued unless the Commissioner is satisfied that the statutory storage and safety requirements are capable of being met by the applicant.

46. It is not disputed that the applicant currently has no safe storage facilities at his residence or elsewhere on the Mullaley property. Having conducted a search of all the buildings in the exercise of their powers in relation to the FPO under s 74A(2) of the Firearms Act, police reported in the fact sheet relating to charge H70435477 that “Police did not locate a firearms safe within any of the dwellings or sheds” (exhibit R2, tab 5).

47. The applicant has undertaken that if his licence is restored, he will install a firearms safe in the bedroom of his house. There are only two keys to the house, and he and his wife carry one each on them at all times. He would have only one key for the firearms safe, which would be in his sole custody. Those arrangements might appear satisfactory, but the respondent submits that they would be fatally compromised by the presence of Ricky Finlay, the applicant’s son.

Domestic circumstances – proximity of Ricky Finlay

48. Section 11(4)(a) provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances. That belief gives rise to a discretionary power to revoke a licence under s 24(2)(a).

49. The respondent submits that because Ricky Finlay lives, and is currently required by bail conditions to live, in close proximity to the applicant, the applicant would not be able to exercise continuous and responsible control over firearms stored at the property.

50. On 21 December 2008, Ricky Finlay was charged with nine offences relating to the storage and registration of firearms. Six of the charges were withdrawn, and in relation to the other three he was fined $750 and placed on a two-year good behaviour bond under s 10. At the time of the offences he was not living at the Mullaley property but at a property located at Boggabri with a woman named Ashley ****.

51. Following the breakdown of that relationship in October 2007 and Ashley’s departure, Ricky apparently removed the gun safe containing her firearms and took it to a nearby property owned by Ashley’s father, but which at the time was unoccupied. He apparently dumped the safe in one of the sheds and placed the keys to the safe in a mailbox at the entry to the property. The safe, keys and firearms had not been seen since (fact sheet, exhibit R2, tab 4).

52. On 13 July 2018, six charges relating to firearms storage and registration were laid against Ricky, as well as one charge of possessing a shortened firearm (which was apparently not short enough to qualify it as a pistol). One of the charges was withdrawn and five were taken into account in connexion with a charge of possessing an unregistered firearm. He was fined $4000 and was made subject to a two-year community correction order expiring on 2 April 2021.

53. These charges arose as a result of the police search mentioned above of the buildings on the property pursuant to their powers in relation to the FPO. On searching Ricky Finlay’s residence, police found an unsecured .22 rifle and a dismantled BSA .22 rifle that proved to have a shortened barrel.

54. Currently Ricky Finlay is on bail awaiting trial on charges of knowingly participating in a criminal group and assisting crime, and stealing property as a clerk or servant. The redacted fact sheet (exhibit R2, tab 6) states that he assisted a criminal group supplying drugs at Gunnedah by supplying petrol and diesel fuel to the group’s organizers to enable them to travel to procure prohibited drugs. The drug was methylamphetamine, intended for his use and for the other participants to sell at Gunnedah. It is alleged that the fuel was stolen from the applicant’s property.

55. Ricky Finlay would plainly not qualify as a fit and proper person to hold a firearms licence. The question, however, is whether the domestic arrangements between him and the applicant are such that the latter might not personally exercise continuous and responsible control over firearms.

56. Ricky Finlay works at the property and lives alone in a house situated on it, which was previously the applicant’s mother’s old home. The main homestead where the applicant and his wife live is located on the western side of the road, while Ricky’s cottage is about 150 m distant. His bail conditions require him to reside there. The respondent submits that the two dwellings are within sight of each other and that the property is a remote rural property with multiple tools, including an oxy-acetylene welder and grinders that are readily accessible to anyone who wanted to break into a firearms safe and access the firearms stored at the property. The respondent’s concerns stem from Ricky’s criminal history and his being subject to an FPO, as well as the tension and animosity between him and his brother Todd.

57. The applicant’s unchallenged evidence, however, is that there is no welding or grinding equipment on the property and only a few tools. The photographs in exhibit A2 show the applicant’s residence to be a substantial, new-looking brick building in the Australian homestead style. The only two keys to the house are carried by the applicant and his wife, and if a gun safe were installed, he would have the only key to it. Only one firearm at a time would be removed from it and the applicant states that he would not use any firearm if Ricky were present. The applicant is a man aged 73 with an unblemished record and the judgment and firmness of character successfully to manage a large farming and grazing property. There is no reason to doubt that he would abide by the guidelines that he has set for himself.

58. Ricky’s residence is 150 m away and he takes all his meals there, except on special occasions such as Christmas. He seldom comes into the applicant’s house and is not required to do so for work purposes as the various tasks are allocated by telephone.

59. Although Ricky Finlay has criminal convictions, he has no record of breaking and entering. And while his criminal offences mainly involve the storage and licensing of firearms, there are none relating to actual firearm use. Nor has he any record of criminal violence. The applicant maintains that Ricky has never been shooting on the property, and indeed says he has never seen him shooting at all. “He’s never been a shooter”, he said. Indeed, Ricky’s earlier action of dumping Ashley’s gun safe (and the firearms stored in it) in a shed on an unoccupied property owned by her father and dropping the key in the mailbox does not suggest a keen interest in firearms.

60. That would not preclude the theft of firearms for resale in order to support a putative methylamphetamine habit, but for the reasons given above I do not consider that a real risk.

61. The applicant proposes to install a firearms safe in his bedroom, which he says is the most secure place on the whole property. In my view, the evidence indicates that his domestic circumstances would not prevent him from exercising continuous and responsible control over firearms, and I so find.

Effect of the firearms prohibition order

62. There is another aspect to domestic arrangements in this matter, however. Ricky Finlay is subject to a firearms prohibition order. Section 74(6) of the Firearms Act provides that a person who is subject to an FPO is guilty of an offence if a firearm, firearm part or ammunition is kept or found “on premises at which the person is residing”. That provision, the respondent submits, precludes the grant of a firearms licence to the applicant.

63. The question is whether firearms potentially stored in the applicant’s homestead can be said to be on premises at which the person (Ricky) is residing. Section 74 does not define the word “premises”, nor is there any general definition of the term in the Act’s definition section, s 4, though s 4A incorporates a specific definition as part of a definition of “possession”. The respondent contends that the term should be interpreted broadly and in that event would encompass those two separate dwellings on the overall property owned by the applicant. No authorities on the point were cited, and the matter appears to be a case of first impression.

64. In the circumstances I do not think it necessary to attempt a comprehensive definition of “premises”. If one assumes for present purposes that the meaning of “premises” is broad enough to encompass separate residential dwellings standing on the same property and perhaps sharing the same street number (as is the case here), the question whether they were in fact part of the same premises would necessarily be a question of fact and degree. In some cases the answer would be in the affirmative, as for example in relation to the hacienda arrangement formerly found in parts of Latin America, where there are separate dwellings under separate rooves but forming part of an ensemble characterized by a degree of communal life. In other cases the answer might be in the negative, such as where separate residences are separated by considerable distances, may not be visible from one to the other and where individuals and families lead separate lives.

65. In rural Australia it is not uncommon for more than one generation to live on the same property. For example, a married son and his family might be living in the original farmhouse while his parents reside in a newer and more commodious residence nearby. Whether such dwellings could be regarded as part of the same premises would involve evidence of such matters as distance of separation, utilities and services, lifestyle and occupations, and relationships among the residents.

66. In the present case the dwellings are 150 m apart, a not inconsiderable distance even though, in the flat terrain of the property, they are visible to each other. In a suburban setting, houses 150 m apart would never be regarded as forming part of the same premises. Ricky Finlay visits the main homestead only infrequently and it is not necessary for him to do so for work purposes. He has never lived there, and even when young resided and had his meals at his grandparents’ residence (the house where he now lives). That might be thought a somewhat unusual arrangement, but the applicant said it was not the result of any family tension or animosity.

67. Ricky Finlay does not have a key to the homestead and takes all his meals at his own house. For practical purposes the residences are as separate as they would be if they were a kilometre apart. On all the evidence, safe storage of firearms at the applicant’s residence would therefore not constitute storing them on premises where Ricky Finlay resides, and I so find. Consequently, s 74 presents no obstacle to the applicant’s safe storage proposal.

The public interest

68. The respondent submits that it would be contrary to the public interest, with particular regard to safety, to allow the applicant to continue to hold his firearms licence. The Commissioner pointed out that in this context there is no basis for differentiating between the conduct of the applicant himself and the conduct of another, in this case his son, which might impact on public safety: Tolley, at [31].

69. Under s 24(2)(d), a licence may be revoked “for any other reason prescribed by the regulations”. Clause 20 provides that the Commissioner may revoke a licence if satisfied that it is no longer in the public interest for the licensee to continue to hold the licence.

70. The phrase “public interest” is not defined in the Firearms Act. In O’Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

71. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference 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 Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

72. The issue of public interest allows 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]. The reference to public interest thus makes it clear that matters of purely private preference and interest cannot prevail over the welfare of the broader community: Hill v Commissioner of Police [2002] NSWADT 218, [22].

73. The primary focus of the public interest test is public safety. The respondent does not contend that the applicant himself presents any risks in that regard, but expresses concerns because of the relative proximity of Ricky Finlay’s residence to the homestead where the applicant proposes to install his safe storage. I have concluded above that those domestic arrangements are unlikely to prevent the applicant from exercising continuous and responsible control over firearms. Nevertheless, a residual concern on that score remains.

74. Frequently quoted in this context are Hennessy DP’s comments in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] where her Honour said that in considering public safety under the Act, “the Tribunal must be satisfied that there is virtually no risk” to public safety, while acknowledging that it would never be possible to be sure that a person presented absolutely no risk. That case dealt with the “fit and proper person criterion, but the comments have been held to apply to the public interest test as well.

75. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [7] that the Ward decision had set aside the Commissioner’s decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence: “The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests”.

76. In Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124, [55] – [57] I surveyed a number of the recent authorities on that point, and there is no need to repeat that discussion here. It may be helpful, however, to note that in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that 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”.

72. The respondent submitted that there were a number of circumstances that pointed to the existence of such a real and appreciable risk. One was Ricky Finlay’s criminal history. He was found guilty in 2009 of a number of firearms storage and licensing offences but apparently failed to learn from that experience as he again committed similar types of contraventions in 2018. He had (according to the pending charges against him) shown a willingness to steal in order to support a methylamphetamine habit and generally displayed a continuing disregard for the law.

73. He might seek to use oxy-acetylene equipment and grinders to break into the applicant’s proposed firearms safe in the main homestead. That, however, falls into the category of what Montgomery JM called theoretical or minimal risk, in my view. Ricky Finlay has no record of breaking and entering, and seemingly no particular interest in firearms. He has no keys to the homestead, which is a substantial building. He has never lived in the house, seldom visits and has little occasion to do so. Finally, the uncontradicted evidence is that there is no oxy-acetylene equipment or grinders, and apparently not many tools, on the property.

74. Mr Zoppo sought to distinguish the discussion in Kopco on the ground that the son’s convictions in that case included no firearms offences, whereas Ricky Finlay has faced repeated charges relating to firearms storage and licensing. That is a relevant circumstance, but only one among several and not a decisive one.

75. An all too real matter of concern, however, is the stabbing incident at the property that resulted in police being called on 9 May 2015 and that led to serious wounding charges being brought against Todd Finlay, Ricky’s elder brother. Ricky Finlay suffered life-threatening injuries in the incident.

76. The police fact sheet for matter number H57148180 (exhibit R2, tab 7) relates that “On arrival at that location Police and emergency services found Rick Finlay with a significant wound to his abdomen. The wound was such that the victim’s intestines were protruding and being held by the victim. It was also found that Dylan Suey had three stab wounds to the abdomen. Both males stated that the injuries were inflicted by Todd Finlay, Rick’s older brother”.

77. The police were later contacted by Todd Finlay’s eldest son, Lachlan, who said that there had been a fight with a knife and that Rick Finlay had then stabbed himself and started to scream that Todd had stabbed him. That version of events was later supported by Todd Finlay’s de facto, Joanne ****. Following a jury trial, Todd Finlay was acquitted of the wounding charges.

78. That episode, as the respondent submitted, certainly attests to the hostile relationship existing between Ricky and Todd Finlay. The criminal proceedings have, however, not led to the making of any finding as to whether Ricky’s injuries were inflicted by himself. There is no way of knowing what the jury believed on that point.

79. Ricky Finlay has no history of attempted self-harm and it is hard to believe that he would perform a passable rendition of seppuku merely so that he could accuse his brother of the deed. Further, the statements to police by Ricky and by Dylan Suey that Todd was responsible virtually form part of the res gestae, whereas the allegations by Todd’s son and partner came later and might therefore be thought to carry somewhat less weight. Overall, I do not think the evidence permits a confident conclusion to be drawn about what happened on that day.

80. On the other hand, there are public interest considerations favouring the applicant’s position. For farmers and graziers in rural New South Wales, long arms are a practical necessity, especially in relatively remote areas such as the one where the applicant’s property is located. Any significant primary production is virtually impossible to sustain without them, and the environment suffers greater damage if ferals and other pests cannot be culled, especially in times of prolonged drought, such as the present. Firearms are the most humane way of doing that and of putting down sick, injured or bogged stock animals, as the applicant pointed out in his evidence. On all the evidence, therefore, it appears that it would not be contrary to the public interest for the applicant to hold a firearms licence, and I so find.

81. The decision under review should therefore be set aside and a category AB licence should be issued to the applicant. Mr Zoppo very properly suggested, however, that if the tribunal were minded to set aside the decision, the order could be made subject to a condition that the licence not issue until the Commissioner was satisfied with the applicant’s safe storage arrangements. That suggestion should be adopted.

Orders

1. Decision under review set aside.

2. A category AB firearms licence is to issue to the applicant, but only if and when the Commissioner is satisfied that the applicant’s safe storage arrangements meet the statutory requirements.

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

Registrar

Decision last updated: 14 January 2020