Garland v Commissioner of Police

[2020] NSWCATAD 210

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Garland v Commissioner of Police [2020] NSWCATAD 210

Hearing dates:

8 July 2020

Date of orders:

27 August 2020

Decision date:

27 August 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING - Firearms licence – public interest

Legislation Cited:

Crimes (Sentencing and Procedure) Act 1999

Firearms Act 1996

Firearms Regulation 2006

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Bottomley v Commissioner of Police [2005] NSWADT 211

CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408;

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

Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cook v Commissioner of Police, New South Wales Police Service[2003] NSWADT 30

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

Director of Public Prosecutions v Smith (1991) 1 VR 63

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

Hijazi v Commissioner of Police, NSWPF [2015] NSWCATAP 82

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

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

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

Morabito v Commissioner of Police, NSW Police [2006] NSWADT 181

Morris v The Commissioner of Police [2002] NSWADT 223

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Sydney Pistol Club v Commissioner of Police, NSW Police Force [2012] NSWADT 121

Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226

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

Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75

Texts Cited:

None cited

Category:

Principal judgment

Parties:

David Anthony Garland (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Maddocks (Respondent)

File Number(s):

2020/00060841

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. The Applicant, David Anthony Garland is a firearms aficionado, and has held various firearms licences since well before the introduction of the current licensing regime, the Firearms Act 1996 (the Act). Under the current legislative scheme he held a firearms licence for Category A, B, G and H firearms for various genuine reasons: 'Sport/Target Shooting', 'Recreational Hunting/Vermin Control', 'Security Guard' and 'Firearms Collection'. He was also, for a period, a Firearms Safety Training Instructor. The Applicant was also the primary owner and operator of the licensed firearms dealer business known as ‘The Stockade' (the business) for about 40 years and had been issued with various licences and permits in relation to the business, the most recent being: Firearms Dealer, Theatrical Armourer Dealer, Theatrical Weapons Armourer, Prohibited Weapons Dealer and Category H Business.

2. Following an audit conducted at the business’ premises by Licensing Police the Applicant was charged with 397 offences under the Act and 55 offences under the Firearms Regulation 2006 (the Regulation). When the matter was heard at the Downing Centre Local Court on 8 June 2018, some charges were withdrawn and some dismissed; and some charges were amalgamated – in all, representing 350 separate alleged offences. Seven different amalgamated charges were found proven but were dismissed without conviction pursuant to s 10 of the Crimes (Sentencing Procedures) Act 1999, and the Applicant entered into a six-month good behaviour bond. This Order was confirmed on appeal on 12 March 2019, with the bond commencing on 8 June 2018.

3. The Respondent decided to revoke the Applicant’s firearms licences and those of his business. On 31 January 2019, the Applicant lodged a Category ABGH individual licence application, which was refused on 23 May 2019. That decision was affirmed on internal review. He has applied for review of the Respondent’s decision. I observe that a good behaviour bond would, of itself, preclude the issue of a firearms licence under s 11(5)(d) of the Act. However, the term of the good behaviour bond has recently expired.

The Act in relation to granting licences

4. The general principles of the Act are set out in s 3 of the Act:

3 Principles and objects of Act

1. The underlying principles of this Act are:

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

   (b)   to improve public safety:

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

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

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

2. The objects of this Act are as follows:

   (a)   to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

   (b)   to establish an integrated licensing and registration scheme for all firearms,

   (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)   to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

   (e)   to ensure that firearms are stored and conveyed in a safe and secure manner,

   (f)   to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

   5. There was no contention that the Applicant is not a fit and proper person to hold a firearms licence: s11(3)(a) of the Act.

   6. Section 11(7) however provides that the Commissioner (and hence the Tribunal on review) may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Evidence

7. In addition to the s.58 documents, I had before me a statement by Senior Constable Wayne Jackson of the Licensing Police, correspondence referred to in his statement and a USB of a video taken from the business’ premises. SC Jackson also gave evidence. The Respondent also filed a Firearms Dealer Information Booklet (Booklet) dated September 2012. The Applicant filed a statement and statements by David Everett and Teresa Alexeeff. Mr Everett wrote of his long professional association with the Applicant, of his honesty and his knowledge of the firearms industry. Ms Alexeeff is the Applicant’s partner, and wrote that, at some stage, she had taken over management of the business’ firearms records. Neither was required for cross examination. All were critical of the Firearms Registry and, in particular, its online system for updating firearms information. The Applicant filed transcripts from the Local Court, a Dealer Bulletin and correspondence between SC Jackson, the Applicant’s solicitor and correspondence between the Firearms Registry and the Applicant.

How did the charges come about?

8. The Applicant has had a long association with Licensing and local Police and he, and the business, had been inspected on multiple occasions, and, up until the events which gave rise to the charges, was, on every occasion - April 2003, September 2010, May 2011, January 2013, and November 2014 - found to be compliant. I was informed that, in relation to 3 of those occasions, the inspections related only to safe storage of weapons and no audit was undertaken of the firearms on the premises.

9. In mid-July 2015 the Firearms Registry informed the Applicant that the business was to be audited. At the Applicant’s request, the proposed audit date was moved from mid-August to 31 August. During that time Firearms Registry staff received increased calls from the business enquiring if firearms in its possession were registered. From 8 to 18 August 2015, after being notified of the upcoming audit, that the business registered at least 117 firearms that had not been previously registered in NSW. These firearms were apparently already within the stock of the business and held on the premises. 75 of those firearms were handguns and four were classified as prohibited weapons. The majority of those firearms were acquired by the business from the Applicant. In cross examination SC Jackson observed that all firearms that had been registered under the previous legislation were required to be re-registered when the Act commenced. The Applicant said in cross examination that when the 117 firearms that did not appear to be registered as they “couldn’t be found in the current system”, he speculated that they may have been registered under the previous legislation. The Firearms Registry had told him, however, that that was not the case.

10. Also, prior to the audit, on 20 July 2015 the Applicant, on behalf of the business, attended Dee Why Police Station and surrendered 168 firearms for destruction. Subsequent investigation by Police revealed that 60 of those firearms were unregistered. During a recorded interview with Police, the Applicant admitted that some of the surrendered firearms were unregistered, to having possession of firearms that were unregistered, and to not registering them as required.

11. On 31 August 2015 Police attended the business’ premises to conduct the audit. Firstly, the Applicant was given a list of 20 firearms which he was asked to produce. Meanwhile, Police conducted what was described as a ‘dip sample’ of the firearms on the premises, by checking firearms’ storage arrangements, all the descriptors of the firearms, the tagging of the firearms and any paperwork associated with those firearms.

12. According to Police Fact Sheets in the criminal proceedings, Police discovered:

1. three unsafely stored firearms left unsecured behind the front counter;

2. three racks of firearms that were unsecured;

3. a handgun stored together with live ammunition;

4. records not kept securely;

5. incorrect identification, description and records kept of firearms;

6. unsafe testing of firearms into phonebooks inside the workshop; and

7. firearms could not be readily located.

13. Between 7 and 11 December 2015 Police again attended the business’ premises and conducted a full audit of all firearms on the premises. At the conclusion of the audit Police found that 315 firearms were unaccounted for; 36 firearms were unregistered, with three having their serial numbers obliterated; and 56 firearms attached to the Theatrical Armourers licence were forensically tested and deemed able to fire live ammunition.

14. The Firearms Registry subsequently forwarded three spreadsheets to the Applicant listing the outstanding firearms. The Applicant returned some information such as serial numbers, firearms descriptors, or explanations as to the disposal of the firearms which supplemented information held by the Firearms Registry. Subsequently, the Applicant found three pistols which had previously been considered missing.

15. There was no dispute that at the Local Court the following offences were found proven against the Applicant, although dismissed without conviction:

1. Not keep firearm safely-not prohibited firearm/pistol

2. Licensed firearms dealer fail to keep records in safe place

3. Firearms dealer fail to ensure security of displayed firearm

4. Use unregistered firearm-not prohibited firearm/pistol-T

5. Firearms dealer not ensure records sent to Commissioner

6. Give firearm to person not authorised by licence/permit-T2

7. Give pistol to person not authorised by licence/permit-T2 (two charges)

16. In addition to the matters proved before the Local Court, the Respondent contended that the Applicant had committed a number of contraventions of the Act including:

1. possession of unregistered firearms and failure to register them;

2. failure to ensure the safekeeping of firearms;

3. failure to store records securely;

4. incorrect identification, description and record keeping of firearms;

5. failure to present firearms to police for inspection;

6. conduct in releasing firearms that could fire live ammunition to theatrical productions;

7. failure to ensure that at least 78 firearms (and up to 315) were not lost;

8. possession of firearms with serial numbers obliterated.

CONSIDERATION

17. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, but it is well established that the Tribunal will have regard to the context in which it appears: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. 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. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 (Hill) at [24].

18. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the “fit and proper person” test, the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

19. The principle in Ward is to the effect that 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 also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that:

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.

20. The Act sets out the obligations of a person who holds a firearms licence. For example:

1. section 36(1) - a person must not supply, acquire, possess or use a firearm that is not registered, although it is a defence if the person did not know, or could not reasonably be expected to have known, that the firearm concerned was unregistered and the person was not the owner of the firearm at the time of the alleged offence;

2. section 37(1)(a) - the person in whose name a firearm is registered must produce the firearm for inspection by a police officer at any reasonable time when requested to do so by the officer;

3. section 39(1) - a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping; that it is not stolen or lost; and that it does not come into the possession of a person who is not authorised to possess the firearm;

4. section 45(1)(b) - a licensed firearms dealer must ensure that each record relating to a transaction or dealing concerning a firearm is sent to the Commissioner in accordance with the Regulations;

5. section 45(2) - each record must include specified particulars when a firearm changes hands;

6. section 45(3) - an entry concerning the acquisition, receipt, supply or transfer of a firearm, firearm frame or firearm receiver must be entered within 24 hours of the transaction;

7. section 47(1) - a licensed firearms dealer must affix and keep affixed to each firearm in their possession a label showing the entry number for that firearm and the identifying number of that firearm;

8. section 47(4) - a licensed firearms dealer must ensure that their records are kept in a place of safe keeping on the premises specified in the licence, but not in a place of safe keeping in which firearms are kept;

9. section 48(1) - a licensed firearms dealer who displays firearms on their premises must ensure that those firearms are secured in such a manner as would reasonably prevent their removal otherwise than by the dealer or any employee of the dealer;

10. section 50B(1) - a person must not give possession of a firearm to another person unless the other person is authorised to possess the firearm;

11. section 66(1)(b) - - a person must not use, supply, or possess a defaced firearm.

21. The public interest 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]. Further, the public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements: Morris v The Commissioner of Police [2002] NSWADT 223.

22. As to whether the Applicant was aware of his obligations under the Act, in a letter dated 11 October 2012 the Applicant confirmed receipt of the Booklet, but responded:

I am unable to confirm I have read and understood my legislative obligations and responsibilities to operate a business as a firearms dealer, as set out in that booklet as you require an acknowledgement of receipt within 5 working days. However, I will refer to the contents of that Booklet whenever I require assistance in relation to the Act and Regulations.

23. During the hearing, the Applicant again said he had not read that Booklet in its entirety on the basis of advice from the Dealers Association. He conceded that he might have “glanced” at parts of it. The Applicant’s solicitor maintained an objection to the Booklet on the basis that the Applicant was not a signatory to it, despite my allowing the tender on the basis that the Applicant acknowledged he had been provided with a copy. The Respondent contended, and I agree, that the Applicant’s attitude to the Booklet demonstrates a likely disregard for material circulated by the Firearms Registry, which is responsible for administering the Act and Regulation and seeks to assist licensees with compliance. It was submitted that, had the Applicant read the Booklet, he is likely to have readily identified that his practices were not consistent with his statutory obligations and if he had adopted its recommendations, he may not have contravened provisions of the Act and Regulation as was found by the Local Court. To reach such a conclusion though is somewhat speculative. However, in his statement, the Applicant wrote that he did not agree that any thing he had done has been detrimental to public safety, and that his actions had always been well thought out. If the Applicant’s decision not to read the Booklet was ‘well thought out’, it is unclear why the Applicant deliberately chose not to read the Booklet, allegedly “on advice”, when it clearly was likely to contain helpful information, which may have assisted him in his management of the business and in meeting his statutory obligations. I observe that he was also, for a period, a Firearms Safety Training Instructor, which, might suggest some familiarity with the obligations which are related to safety. The Applicant’s approach in relation to the Booklet was, in my view, naïve at best, or deliberately obtuse. It is irrelevant which is the case though, because the Act, as noted above, sets out the obligations of a licensee, and it is incumbent on a licensee to familiarise himself with those obligations. The Applicant, furthermore, has held firearms licences for many years, and, by the time of the audit that gave rise to the charges, had ample opportunity to make himself aware of his obligations.

23. The Applicant’s solicitor submitted that the entirety of the Local Court proceedings concerned matters pertaining to the business and that the offences for which the Applicant was charged all related to the manner in which he managed his firearms dealership. The Applicant’s submission, however, is not accurate. Offences by the Applicant, personally, were found proven, including an offence pursuant to s 36 of the Act that a person must not possess a firearm that is not registered; a charge pursuant to s 39 of the Act, that a person who possesses a firearm is to take all reasonable precautions to ensure its safe keeping; and three charges pursuant to s 50B(1) of the Act, that a person must not give possession of a firearm to another person unless the other person is authorised to possess the firearm. Further, in Hijazi v Commissioner of Police, NSWPF [2015] NSWCATAP 82 at [22] the Appeal Panel said that the Tribunal “should have taken all the breaches into account”. Accordingly, all contraventions committed by the Applicant, irrespective of the capacity in which he breached the Act or Regulation are relevant and should be given significant weight, notwithstanding that they concerned the Applicant’s other permits and firearms dealers licence, which he no longer seeks to obtain. In determining whether it is in the public interest for the Applicant to have a licence or permit, it is necessary to consider all relevant conduct. I reject the Applicant’s submission - the Applicant was, in his own words, “the owner” of the business.

24. In Foster v Commissioner of Police [2020] NSWCATAD 124 the Tribunal stated at [21], that:

It has been consistently stated that the legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.

26. It was contended by the Respondent that, despite some charges not being proven to the criminal standard, the Applicant also contravened ss 37(1)(a), 45(2), 45(3), 47(1), and 66(1)(b) of the Act. It is well established that irrespective of whether charges are proven to the criminal standard, the Tribunal is to take into account matters indicating criminal conduct, notwithstanding the offences have not been proven (or have even been dismissed): Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] – [64]. It is the conduct rather than the conviction that is relevant: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [30]. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] – [34]. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the Civil and Administrative Tribunal Act 2013.

Contraventions relating to registration: ss 36(1) and 37(1)(a) of the Act – possession of unregistered firearms and failure to produce firearms

27. One charge of ‘use unregistered firearm – not prohibited firearm/pistol-T2’ under s 36(1) was found proven against the Applicant, concerning the possession of 60 unregistered firearms. On 20 July 2015 the Applicant handed 168 firearms to licensing Police and on 2 September 2015 the Applicant admitted in a recorded interview that some of the surrendered firearms were unregistered. He admitted to possessing a number of unregistered firearms at the business’ premises and not registering them as he is required to and Police found that, of the surrendered firearms, 60 should have been registered.

28. The contravention of the firearm registration requirements prescribed by the Act is fundamental, with the registration scheme for all firearms being a key object of the Act. In Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 the Tribunal stated at [24] that:

Public safety is promoted by safe storage requirements, registration requirements and a ban on prohibited firearms.

29. Section 37(1)(a) of the Act provides that the person in whose name a firearm is registered must produce the firearm for inspection by a police officer at any reasonable time when requested to do so by the officer. The Applicant was unable to locate and produce to Police 5 specified firearms, including shotguns and a (military) semi automatic rifle. On 2 September 2015 during a recorded interview with Police discussing these firearms, the Applicant stated “when I’ve got it [the business’ premises] tidied up I’m quite confident that there will be a plausible explanation as to where those firearms are”. It is not unreasonable to conclude that, but for the audit, the business’ premises would have remained in disarray and the fact that the firearms were missing would not have come to light. Furthermore, the Applicant was on notice of the impending audit, which was delayed at his request, and was still unable to get the business’ premises in order.

30. It was clear to me, in addition to the proven charge, on the balance of probabilities, that the Applicant breached s 37(1)(a) by the failure to produce firearms to Police.

Contraventions under s under s 39(1) and s 48(1) - safekeeping

31. Section 39(1) of the Act provides for general firearm safe-keeping requirements. One charge of ‘Not keep firearm safely-not prohibited firearm/pistol’ under s 39(1)(a) was found to be proven in relation to a timber gun rack containing firearms which was unsecured on the floor of the customers’ side of the counter about 6 metres from the front door of the business’ premises and which was out of the immediate view of staff. Despite the charge being proven the Applicant asserted before me that the gun rack was in fact affixed to the wall in two locations, but conceded that the gun racks at the business’ premises did not comply with the requirements set out in the Booklet. According to the Fact Sheet, there was no physical barrier to prevent customers from picking up and carrying off the rack, together with the firearms on it. The charge also related to a ‘rotisserie style’ timber gun rack holding 20 firearms on top of the glass counter which allowed customers to touch and handle the firearms. According to the Fact Sheet, this gun rack was not secured in any way, and also could have been picked up and carried out the front door. The charge also related to three unsecured firearms found by Police behind the front counter, which, the Applicant claimed during an interview with Police that those firearms had been left there by an employee after conducting a safe handling course approximately 3 days prior to the audit.

32. It was further contended that the Applicant breached s 39(1)(b) of the Act, by failing to take all reasonable precautions to ensure that firearms are not stolen or lost. The facts before the Local Court were that 78 firearms were lost, and, have still not been located. It was submitted, and I agree, that the wider community would hold great concerns in relation to firearms that are unaccounted for, and that the 78 firearms that formed the basis of charges before the Local Court are of such a significant number that the public would not be confident that the Applicant is a responsible person capable of upholding the strict legislative requirements associated with a personal firearms licence.

33. Before me, SC Jackson’s evidence was that only 78 were the subject of charges as they were capable of being proved to the criminal standard whereas in fact almost 315 remain unaccounted for due to the business’ incomplete records. (Two or three had turned up during an amnesty.) The Applicant contended that all but 78 had been located, and asserted that that SC Jackson’s evidence “is unfounded and unsubstantiated”. That was clearly not the case.

34. Regardless of whether SC Jackson provided the Applicant with a timeframe to provide details about the outstanding firearms, it was open to the Applicant to produce evidence in the Local Court and in these proceedings in relation to the whereabouts of those firearms, but he has not done so. The Applicant was unable to provide a clear paper trail, as no proper acquisition and disposal book (PAB28 register) had been maintained. While SC Jackson said there were “shelves of books” they were all were old and out of date and of no use. He denied that he said, as the Applicant claimed, that he was “not interested”. Licensing Police should be able, he said, to identify every weapon on the premises against the register, and this could not be done. He described the Applicant’s records as “virtually non-existent”. SC Jackson acknowledged that the Applicant had provided some information about the missing firearms, but the information did not completely assist in locating the firearms; SC Jackson described in his evidence the information provided by the Applicant as “sporadic” and “of virtually no assistance”. The fact remains that the Applicant was, and continues to be, unable to explain the location of a large number of firearms. I am satisfied on the balance of probabilities that the Applicant’s conduct in being unable to explain the location of a large number of firearms is a contravention of s 39(1)(b).

35. The Respondent submitted that the Applicant had also contravened s 39(1)(c), in that he did not take all reasonable precautions to ensure that a firearm does not come into the possession of a person who is not authorised to possess that firearm. If firearms are incorrectly categorised, they may be sold or otherwise come into the possession of a person not licensed for the (correct) category of firearms. At the end of the ‘dip sample’, Police discovered that 5 of the firearms produced had been categorised incorrectly, with each being categorised to a lesser Category: for example, a specified Stirling M20, semi-auto .22 calibre was categorised as a Category ‘A’ but in fact the firearm was a semi-automatic rifle, category ‘C’, which is prohibited. I am satisfied on the balance of probabilities that the Applicant’s conduct in miscategorising firearms is a contravention of s 39(1)(c).

36. Section 48(1) of the Act imposes additional safe keeping requirements on firearms dealers. It provides that a licensed firearms dealer must ensure that displayed firearms are secured so as to prevent their removal by anyone other than the dealer or their employee. The evidence in relation to the unsecured gun rack also supports a finding, on the balance of probabilities, that the Applicant contravened s 48(1) of the Act.

37. Public safety considerations relevant to an evaluation of a safe storage contravention were helpfully set out by Hennessy DP in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 at [19]:

(a)   the reason for failing to store the firearm safely;

(b)   the length of time the firearm was not stored safely;

(c)   the potential or real danger posed by failure to store the firearm safely

(d)   the person's previous conduct in relation to storage of firearms and any related matter;

(e)   the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future;

(f)   the reason the person has a firearms licence;

(g)   in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety;

(h)   the discretion must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act.

38. I do not consider the Applicant has provided adequate reasons for failing to store multiple firearms safely. While there is no evidence as to how long they were not stored safely, the sheer volume provides a potential danger posed by failure to store the firearms safely.

39. I consider that the Applicant’s failure to safeguard all his firearms as inexcusable, particularly as he was a licensed firearms dealer at the time and was to be aware of the strict requirements imposed under the Act and Regulation.

Contraventions in relation to record keeping

40. One charge was found proven against the Applicant, being the failure to ensure that a record of each transaction or dealing is sent to the Commissioner under s 45(1)(b).

41. The Respondent submitted that I should also be satisfied, on the balance of probabilities, of a breach of s 45(2) and s 45(3) in relation to those same records. Section 45(2) requires each record to contain certain particulars in relation to the acquisition of a firearm, and s 45(3) requires an entry to be made in a record to be entered within 24 hours of the relevant transaction.

42. Section 47 of the Act imposes some further requirements on dealers. A charge under s 47(4) of failing to ensure that records are kept in a place of safe keeping was found to be proven. Section 47(1) requires a dealer to affix to each firearm a label showing the entry number of the PAB28 register, and the identification number. Police noted that nearly all the firearms held on the business’ premises had new tags on them; all of the tags had the serial number of the firearm and a registration number, but had no PAB28 register number as required. During an interview with Police the Applicant stated that he and his other employees went through and “virtually did a tag for everything” in preparation for the audit to make sure everything had the “serial number, registration number, advice number or whatever other information was needed”.

43. SC Jackson’s evidence was that firearms dealers are required to maintain a PAB28 register, in addition to using FirearmsLink, the Firearms Registry online system, to enable Police to easily review and take copies of any entries, consistent with the requirements of s 45 of the Act. He was cross examined about the system, which was introduced in about 2002. He conceded that the system, in summary, was far from perfect, and could give rise to errors. It was for that reason dealers were required to keep a PAB28 register as well as making the online entries.

44. The Applicant gave strong evidence was that there were significant problems with Firearmslink, and I agree, especially in the light of SC Jackson’s concession, that the system is flawed. However, I agree with the Respondent’s submission that, if the Applicant considered the system to be so unreliable, in order to ensure compliance, it was incumbent on him to ensure he maintained an accurate hardcopy record as required by the Act.

45. The Applicant submitted that the “rationale behind Jackson’s evidence, given under oath, is malevolent”. The Respondent contended that SC Jackson’s evidence with respect to PAB28 register is clearly consistent with legislative requirements and is informed through his considerable experience in undertaking numerous audits of firearms dealers. I do not consider that there was evidence of any ill-intent on SC Jackson’s part; the evidence speaks for itself and it is clear the business’ records were in an appalling state.

46. The Applicant sought to criticise SC Jackson for not taking copies of paper records. During the hearing, SC Jackson’s evidence was that at the time of the audit he “did not envisage that the problems would go back 13-14 years” and in hindsight he may have copied it. This position is reasonable in circumstances where the Applicant was not properly maintaining records, and SC Jackson provided the Applicant with the opportunity to provide any information that would be been useful, and stated that “collectively, most of it wasn’t”.

47. The Tribunal has noted the importance of the record keeping requirements on dealers in Morabito v Commissioner of Police, NSW Police [2006] NSWADT 181 at [26]-[28]:

The importance of the licensing and registration scheme in the maintenance of public safety is obvious. Law enforcement agencies must be able to identify those who hold firearms, and trace particular firearms, if, for example, they have been used in the commission of an offence. The licensing and registration requirements depend for their effectiveness on compliance with record keeping requirements in Part 5 of the Act. The purpose of the obligations to record transactions relating to firearms is to ensure that firearms can be located and identified and their history traced.

...

The Tribunal does not accept that the failure to record the transactions correctly can be attributed to inexperience or overwork. Even if it were not intentional, it was a significant oversight.

48. SC Jackson stated in evidence before the Tribunal that the business’ record- keeping was “virtually non-existent” and that in the eight years he had been auditing firearm dealers, it was some of the worst record-keeping he had seen. On 2 September 2015, during a recorded interview with Police, the Applicant himself described the shop as a “shemozzle”.

49. The Local Court Magistrate found that the Applicant was “simply unable to say” how the 60 firearms the subject of the offence pursuant to s 45(1)(b) came to be on his premises, and “could easily have enquired”, which clearly demonstrates one of the numerous deficiencies in the Applicant’s record-keeping was made out in the Local Court proceedings.

Contraventions: ss 50B(1) and 66(1)(b) and Reg 52(5)(b) - theatrical firearms

50. Section 50B(1) of the Act provides that a person must not give possession of a firearm to another person unless the other person is authorised to possess the firearm. The Local Court found three charges under this section to be proven against the Applicant. The Applicant had provided three firearms to the Sydney Theatre Business, but none had been modified to solely use blank cartridges. There is no dispute that the firearms could all fire a live projectile - as a consequence actors and production staff were using firearms which were capable of firing live ammunition at each other and at audiences. The Applicant pleaded not guilty to the offence on the basis that cl 52(5)(b) of the Regulation merely required that the firearm could fire a blank cartridge, of the same calibre as the firearm, not that it can only fire a blank cartridge. Such an interpretation was clearly inconsistent with the focus on safety set out in the principles and objects of the Act, and the Magistrate found that to be so.

51. Section 66(1)(b) of the Act provides that a person must not use, supply, or possess a defaced firearm. Under s 66(3) a defaced firearm is one on which any number, letter or identification mark has been defaced or altered. There did not appear to be any dispute that 3 firearms had been located with their serial numbers obliterated. I am satisfied that, on the balance of probabilities that the Applicant contravened this provision.

Explosives and the use of telephone books

52. Safework Inspectors conducted their own audit at this time identified three separate issues, being: unauthorised possession of explosives; possession of military explosives; and possession of excessive levels of black powder. Bottles and containers of explosives were kept inside the workshop area. Both Police and Safework NSW Inspectors were of the view that this practice was unsafe and had the potential to put the public (including the Applicant) at great risk, especially, SC Jackson said, if there had been a fire on the premises. I also viewed the video footage contained in the USB annexed to SC Jackson’s statement. The Respondent contended that the footage is relevant to the question of public safety within the context of firearms licensing, as it reflects an irresponsible attitude to dangerous materials. It was contended on the Applicant’s behalf that that material should be given limited weight as the Applicant was not cross-examined on it. However, I observe the USB evidence had been available to the Applicant since 3 June 2020, and he chose not to respond or provide any explanation.

52. SC Jackson agreed that no charges had been laid in relation to the explosives, and agreed that the Applicant had permits for explosives and gunpowder. I do not know if the activity shown on the USB – encouraging a person to be in close proximity of a deliberate explosion - was, forensically, dangerous. With no evidence from the Applicant as to the safety of the activity I am left with a layman’s observation that it appeared to be an inherently dangerous activity. I am satisfied that this demonstrates irresponsible behaviour the Applicant has engaged in with respect to explosives.

53. The Applicant also appears to have routinely test-fired firearms into telephone books in the workshop area of the business’ premises. According to SC Jackson, the phone books showed evidence of being shot at “hundreds” of times, and Police were of the opinion that that activity was extremely dangerous and there was a real possibility that a person may have been shot by a round not safely contained within the phone books. He considered that the residue was likely to be combustible. During the hearing the Applicant gave evidence that the use of telephone books as a bullet stop complied with requirements under the Regulation. The Applicant’s evidence was that the telephone books formed a bullet stop within a bullet recovery box constructed of one and half inch hardwood with metal plates. Images in SC Jackson’s statement at do not show any such box and SC Jackson was emphatic in his evidence that he did not view anything that would constitute such a box. Although SC Jackson conceded that telephone books could be incorporated into a bullet recovery system, his evidence was that it was a matter for a ballistics expert, with reference to the types of firearms and ammunition being used for testing. The Applicant is not such an expert. I cannot come to a view about whether the telephone books constituted a safe bullet stop, given the technical nature of the issue. However, I cannot be confident, on the balance of probabilities, that the practice is likely to be one without risk.

Conclusion

55. I accept that the Applicant has lost the business and is likely to have suffered financially because of the offences. I accept that, as chairman of the Peninsular Firearm Academy for the last 15 years, he has been instrumental in the design and construction of a multi-million dollar rifle range. His evidence, which I accept, was of great disappointment, that, if he has no firearms licence, he will be unable to use the range he has worked so hard to establish. In considering whether an applicant should be granted (or retain) a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public’s safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]. 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'Connor and Others (1995) 131 ALR 657. An Applicant's personal interest in having his licence cannot outweigh the public interest: Hill at [22]. Similarly, in Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed that the “public interest” includes standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual.

56. The Applicant’s solicitor also submitted the Applicant is only proposing to own a small number of firearms. I observe though that there is no legislative impediment to the number of firearms that a licensee can acquire (other than that a licensee must satisfy the genuine reason test), should he be granted a licence. Consequently, the Applicant may acquire multiple firearms, and in my view, has clearly demonstrated that he is incapable of managing multiple firearms.

57. As to whether I can be confident that the Applicant takes responsibility for his past failures, the Applicant repeatedly sought to justify his contraventions on the alleged failings of the Firearms Registry’s records or local Police. I cannot be confident of future compliance with legislation or that future breaches of firearms safety provisions would be unlikely to occur: per Sydney Pistol Club v Commissioner of Police, NSW Police Force [2012] NSWADT 121 at [72]. It appeared to me that the Applicant has not shown any remorse with regard to his contraventions of the safe-keeping and record-keeping responsibilities under the Act. In relation to the registration and record keeping requirements the Applicant is non-apologetic, and continues to maintain that his contraventions in that regard are the fault of the Firearms Registry rather than his own. The various contraventions relating to the Applicant’s display of firearms at the business’ premises demonstrate, in my view, the Applicant’s cavalier approach to the security of firearms, a factor which I consider relevant with respect to the Applicant’s application for a personal firearms licence.

58. In his submissions, the Applicant sought to argue that SC Jackson has been “behaving with excessive zeal, bordering on malice”. I do not find that to be the case; SC Jackson’s evidence contained clear details and particulars of relevant offences and also included evidence of the other contraventions. SC Jackson has done no more than present evidence of what was found in the course of the audit and its aftermath.

59. The Applicant was very critical of the Firearms Registry, claiming that it continues to fail to provide guidance to Theatrical Armourer Dealers, including when he sought advice. In this regard, I observe that the Applicant chose not to read the Booklet, so it is doubtful that he has an interest in obtaining advice from the Firearms Registry, as he claims. Furthermore, even if he genuinely sought assistance from the Firearms Registry, it remains that he had failed to modify weapons he provided to a theatre and the weapons were capable of firing live ammunition.

60. The Applicant submitted that it has been nearly 5 years since the offences, and there has been no offending since. However, such a submission is unhelpful, when the Applicant has not held any authority to possess and use firearms in the past 5 years. Furthermore, the missing firearms remain unrecovered. In Whalan v Commissioner of Police, NSW Police Force [2018] NSWCATAD87 at [54] the Tribunal held that if firearms remain unaccounted for, this is a significant risk to public safety.

61. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].

62. 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. In light of the Applicant’s numerous contraventions of the Act, which concern matters relevant to a personal firearms licence such as safe storage and registration requirements, I cannot not be satisfied that the serious failures committed by the Applicant will not be repeated, or that his reason for seeking a firearms licence outweighs the need to ensure public safety.

63. One element in assessing the likelihood of risk is by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41]. The proven charges largely relate to inadequate safe-keeping and record-keeping of firearms. I observe that these charges represented a large number of breaches which were amalgamated into those charges. In light of the Applicant’s failure to properly register and secure numerous firearms previously within his possession under a range of licences and permits, I have significant reservations that he will comply with the strict requirements of the Act in the future. I regard these transgressions as serious and very significant in determining whether the Applicant should be granted a licence. In addition, I observe that the multiple findings I have made of breaches of the Act and Regulation on the civil standard.

64. Having regard to the findings outlined above I conclude that it is not in the public interest for the Applicant to hold a firearms licence.

DECISION

1. The decision under review is affirmed.

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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: 27 August 2020