Gomes v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 169

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Gomes v Commissioner of Police, NSW Police Force [2017] NSWCATAD 169
Hearing dates:	22 February 2017
Date of orders:	26 May 2017
Decision date:	26 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	DAC Robertson, Senior Member
Decision:	In proceedings 1610569: (1) The decision under review is affirmed. (2) Order pursuant to s64(1)(d) of the Civil and Administrative Tribunal Act prohibiting the disclosure to the applicant of: (a) Exhibits E and F tendered by the respondent; (b) Those parts of the record of hearing and any transcript of those parts of the hearing which took place in the absence of the applicant and his representative as identified orally in the course of the hearing; (c) The confidential submission on behalf of the Commissioner of Police dated 2 March 2017.  In proceedings 1610570: (1) The decision under review is affirmed. (2) Order pursuant to s64(1)(d) of the Civil and Administrative Tribunal Act prohibiting the disclosure to the applicant of: (a) Exhibits E and F tendered by the respondent; (b) Those parts of the record of hearing and any transcript of those parts of the hearing which took place in the absence of the applicant and his representative as identified orally in the course of the hearing; (c) The confidential submission on behalf of the Commissioner of Police dated 2 March 2017.
Catchwords:	Firearms Act – firearms licence – refusal of licence – whether applicants fit and proper persons – public interest
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Kocic v Commissioner of Police, New South Wales Police Force (2014) 88 NSWLR 159 Martin v Commissioner of Police, New South Wales Police Force [2010] NSWADT 276
Category:	Principal judgment
Parties:	Antonio Gomes (Applicant 1610569) Justin Gomes(Applicant 1610570) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: G Kable (Applicants) R Bhalla (Respondent)   Solicitors: Hartmann & Associates (Applicants) NSW Crown Solicitors Office (Respondent)
File Number(s):	1610569 and 1610570

Reasons for decision

1. Mr Antonio Gomes and Mr Justin Gomes have applied to the Tribunal for review of decisions of the Commissioner of Police.

2. Although the applications, which are in identical terms, refer to a decision to revoke the applicants’ firearms licences, both applicants’ firearms licences had been revoked in 2014. The statements of reasons attached to each of the applications relate to a decision of the Commissioner, confirmed by internal review on 15 August 2016 in each case, to refuse to issue a firearms licence. I will deal with the applications as applications for review of the decisions to refuse to issue each of the applicants a firearms licence.

3. Justin Gomes is the son of Antonio Gomes. Without disrespect I will generally refer to the applicants by their first names.

4. Both applications were heard together with all evidence received in both proceedings. Although these reasons for decision address both applications, I have given consideration to each application separately.

Background

5. I understand the following background facts to be uncontroversial.

6. On 17 June 2013, following the execution of a search warrant at the applicants’ residence at Bankstown, the residence of Daniel Gomes, who is Antonio’s son and Justin’s brother, at Arncliffe, and a property owned by the family at Numeralla, the applicants were arrested and charged with possession of prohibited weapons without a permit. In the case of Antonio Gomes the weapons were extendible and long batons and handcuffs. In the case of Justin Gomes the weapons were a flick knife and nunchuks. Those weapons were all prohibited weapons pursuant to the Weapons Prohibition Act 1998 (“WPA”).

7. In addition, Antonio Gomes was charged with failure to store ammunition safely.

8. The applicants were found guilty of the offences in early 2014 and given a section 10 bond, with no conviction recorded. The existing firearms licences held prior to 2014 by each of the applicants were revoked by the Commissioner on 14 February 2014. Those decisions, to revoke the applicants’ firearms licences, were the subject of internal reviews conducted in June 2014, which affirmed the decisions to revoke the licences.

9. During the execution of the search warrants, police alleged that one of the applicants had insinuated that there were weapons buried at their Numeralla property. The applicants deny having made any such insinuation. No weapons were found during the search of bushland and grounds, although police noted that the property was large.

10. After the revocation of the applicants’ licences, their weapons were transferred to Antonio’s wife, Maria, and kept at the Bankstown property.

11. At the conclusion of their good behaviour bonds (which passed without incident), the applicants applied for new firearms licences in March 2016. Those applications were refused. The refusals were confirmed on internal review. Those refusals are the subject of these applications.

12. The reasons for the refusal of the applications as summarised by Counsel for the Commissioner in his submissions were as follows:

“Essentially, the reason for the Commissioner’s refusal to issue new licences to the applicants can be reduced to a belief that the Gomes have continuing possession of or access to a prohibited firearm. That belief is based upon the following reasons:

(a) The 2013 search warrants were conducted after the Australian Customs and Border Protection Service (“Customs”) intercepted an attempted importation of two prohibited 50-round magazines to fit a prohibited SKS/AK47 military assault rifle, and previous undetected shipments from the same vendor. The consignee was the applicant Justin Gomes.

(b) Some of the ammunition seized, in respect of which Antonio Gomes was charged and found guilty, were 7.62 calibre, which is the calibre used in the prohibited magazines seized by Customs.

(c) In May 1995, a Norinco SKS 7.62 calibre military semi-automatic assault weapon was added to the relevant register in the name of Antonio Gomes. The acquisition date is listed as 25 August 1993. This is the date of an application by Antonio Gomes for a prohibited firearms permit. The permit was granted on 22 October 1993.

(d) On or around 30 September 1997, Antonio Gomes surrendered two SKK rifles pursuant to the gun buyback program. There is no record of an SKS weapon having been surrendered.

(e) In October 2013, the applicants’ solicitor representing them in respect of their criminal charges arising out of the Customs search warrant attempted to enter into negotiations with police to have the charges against his clients withdrawn. It is worth setting out what was being offered by the applicants:

“The thrust of the Defence application is that, without prejudice for the purposes of negotiation, if possible, a Norinco SKS 7.62 Firearm would be located and surrendered to NSW Police as a precondition that the Prosecutions be Withdrawn against Antonio Gomes, Justin Gomes [the applicants in this matter] and Daniel Gomes.”

(f) It will be further noted that:

(i) the model of weapon nominated by the applicants in their negotiation is precisely the same as the subject of Antonio Gomes’ 1993 application in respect of which there is no record of surrender;

(ii) the prohibited magazines, the attempted importation of which triggered the Customs investigation and search warrant, fit the Norinco SKS prohibited firearm; and

(iii) some of the ammunition seized during the execution of the search warrants would also be suitable for the Norinco SKS, as well as the prohibited magazines seized by Customs.

In the alternative, the applicants have at the very least, through their solicitors in 2014, indicated that they are aware of the location of a prohibited firearm. They have not assisted police with its recovery, even having acknowledged the public safety risks by such a weapon remaining at large. Their inclination to assist police only existed if there was something to be gained by them.

The evidence tendered on behalf of the Commissioner

13. The documentary evidence relied upon by the Commissioner supported the reasons outlined above and with one qualification I accept that it established the facts relied upon by the Commissioner. The qualification relates to the matter referred to in sub-paragraph (c) of the extract from the Commissioner’s submissions set out above. The documents tendered by the Commissioner included a Prohibited Firearms Permit application signed by Antonio dated 25 August 1993 for permission to possess a weapon identified as an SKS 7.62 semi-automatic.

14. The application form produced from Police records includes an annotation dated 17 September 1993, “no weapons owned, will advise when purchased”. Another copy of the document also produced from Police records bears a handwritten note “Add weapon to system” and the date 18 May 95.

15. The Commissioner also produced a computer print-out from the “New South Wales Police Integrated Licensing System” dated 29 July 2013 which appears to record that Antonio had acquired on 25 August 1993 “a firearm that is a self-loading centre-fire rifle of a kind that is designed or adapted for military purposes” of which the details provided were “Make: Norinco, Model: SKS”. No serial number was recorded.

16. The Commissioner did not lead any evidence to explain these documents. It appears to me that these documents are consistent with Antonio having had the intention to acquire an SKS rifle and having obtained a permit in advance. I do not find that this evidence of itself establishes that Antonio did actually acquire such a weapon.

17. The Commissioner also tendered two exhibits (E and F) which he sought to keep confidential. I heard evidence in support of the application for confidentiality from a police officer in the absence of the applicants and their representatives. I was satisfied that it was desirable to make orders prohibiting the disclosure to the applicants of the documents which the Commissioner sought to keep confidential, and the recording and any transcript which might be made of the part of the hearing which took place in the absence of the applicants. Accordingly I made orders pursuant to s64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure to the applicants of exhibits E and F tendered by the Commissioner and those parts of the record of hearing and any transcript of those parts of the hearing which took place in the absence of the applicants or their representatives.

18. Following the hearing the Commissioner filed by leave a confidential submission dated 2 March 2017 addressing the contents of the confidential exhibits E and F. It is appropriate that I make an order pursuant to s64(1)(d) of the Civil and Administrative Tribunal Act prohibiting the disclosure to the applicants of the confidential submission dated 2 March 2017 filed on behalf of the Commissioner of Police and I do so.

The applicants’ case

19. Both Antonio and Justin filed statements of evidence and gave oral evidence at the hearing.

20. Ms Theresa Gomes, the wife of Antonio and mother of Justin, provided a statement confirming that she accompanied Antonio when he handed in firearms and also stating that she had never seen either Justin or Antonio “with any military-style assault rifles”. Ms Theresa Gomes did not give oral evidence.

21. The applicants did not dispute that they had been convicted of the offences outlined above, that is possession of prohibited weapons (both applicants) and failure to store ammunition safely (Antonio only). Neither of them had been prosecuted over the importation of the magazines. In his statement filed in the Tribunal and in oral evidence at the hearing, Justin Gomes gave evidence that he had imported the magazines but that they were for an “elderly neighbour” who I will refer to as PK.

22. Justin denied making any statements that there were prohibited firearms on the farm. He asserted that a detective involved in the search of the property in 2014 had stated “I reckon that they’re buried on your farm, aren’t they?”

23. Antonio also attributed the same words to that detective. Antonio explained that the ammunition which he was convicted of possessing had been left over from when he had possessed two SKK rifles which he had handed in as part of the gun buy-back scheme in 1998.

24. Antonio explained the fact that the ammunition was not properly stored as “due to the large quantity I did not have adequate safe storage facilities for it although it was located in a locked room”.

25. Antonio stated that Justin had informed him during the search in 2014 that he had imported AK 47 magazines for PK and that he had communicated to his solicitor that PK was in possession of the SKS firearm and that Justin had imported magazines for it.

26. Antonio stated that he had first obtained his firearms licence about 20 years ago or even longer. He had held a prohibited firearms licence which permitted him to own two military style rifles. He had owned two SKK semi-automatic military rifles made in Russia which he had obtained a year or so after his licence was issued to him. Those rifles were handed in to the Bass Hill police station as part of the gun buy-back scheme in about 1998.

27. Antonio stated that he had never owned an SKS rifle. He stated that during the execution of the search warrant on his property during 2013 the police had questioned him about an AK47, which they had informed him they had reason to believe he owned because someone had imported magazines for such a weapon.

28. Antonio stated that when the police questioned him about the magazines he had no knowledge of them. He then made enquiries and had a conversation with his son, Justin, who explained that he had imported them for someone else, the neighbour, PK.

29. Antonio explained that PK was a friend and neighbour who used to keep an eye on the property when Antonio was not there and that Antonio was accustomed to buying things in Sydney for PK. Antonio stated that PK’s property was about 2,500 acres, and he had never enquired about whether PK had a licence to own a rifle. He was aware that PK kept rifles in the back of his ute.

30. Antonio explained that he had had the batons and handcuffs, the subject of the charges against him, as part of a security business which he had previously conducted.

31. In the course of the investigation of the offences leading to the charges, he had spoken to his solicitor, Mr Lorkin, who had made a few phone calls and asked “Is there any chance of you getting hold of a weapon you can hand in to police?” Antonio stated that he had told Mr Lorkin he was not in a position to say yes or no but that he could speak to the person who had the weapon.

32. Antonio stated that he then spoke to the person who had the weapon who was quite willing to surrender it and offered to help with the Gomes’ court costs. Antonio gave evidence that he told Mr Lorkin that he would be able to hand in the weapon and that Mr Lorkin had said he would seek to organise an indemnity. Mr Lorkin had subsequently reported to Antonio that “the police would not play ball”. I note that, by volunteering this evidence of his communications with his solicitor in 2013, Antonio must be taken to have waived legal professional privilege in those communications.

33. Antonio’s explanation for not disclosing the whereabouts of the weapon in 2013 or 2014 was that he wanted confirmation from the police that he wouldn’t be in trouble for handling it, and was concerned that if he himself handed it in, he would be in trouble.

34. Antonio stated that he had been the subject of previous inspections to check that he was keeping his weapons and ammunition stored safely. The weapons and ammunition had previously been kept on the farm (the Numeralla property) but there had been a break-in at the farm and Antonio had brought the guns and ammunition back to Bankstown.

35. Antonio acknowledged that some of the ammunition which he had kept at Bankstown was for assault rifles. His explanation was that he had had that ammunition from when he owned the SKK rifles, prior to 1998. He stated that he had had in mind that he might obtain a bolt-action rifle which uses the same ammunition.

36. Antonio stated that as he had room to store the ammunition he saw no reason not to keep it. He kept it in a room at the back of the house where he had an office with an alarm but had learnt from the prosecution in 2013 that he should have had the ammunition kept in a locked safe.

37. Under cross-examination by Counsel for the Commissioner, Antonio acknowledged that a responsible firearms owner would have disposed of the ammunition or kept it in accordance with the requirements of the legislation. Antonio stated that he had not been familiar with the requirements of the legislation and had not kept up to date with them. He stated:

“That was my mistake, I was vaguely aware that I was required to keep the ammunition in a safe place, I needed to keep the ammunition in a locked cupboard but I didn’t realise the boxes in which I had stored it were not sufficient.”

38. Also under cross examination Antonio acknowledged that he had applied for review of the decision to revoke his previous firearms’ licence in 2014 and was aware of the result of that review. He acknowledged that he had said nothing about the location of the SKS rifle when he applied for the grant of a licence in 2016 or when he had applied for an internal review of the decision to refuse his application, despite the fact that the suspicion that he had possession of an SKS rifle had loomed large in the internal review of the decision to revoke his licence in 2014.

39. Antonio acknowledged that the Commissioner had asked before the hearing that he waive privilege in respect of these communications with Mr Lorkin in 2013 and that he had declined to do so. When asked why he had until the hearing itself refused to waive privilege in respect of communications with his solicitor leading to the representation to police made by his solicitor in 2013, Antonio stated “It was my right.”

40. Antonio acknowledged that in 1993 he had applied for a permit to keep a prohibited weapon and that he had been seeking a permit to own an SKS weapon, but he denied ever obtaining such a weapon. He was unable to explain how it had come about that the police integrated licensing system recorded him as holding such a weapon.

41. Antonio stated that he had spoken to PK about the SKS weapon which he said PK had possessed. Antonio stated that PK had said to him “Look mate, I assure you that that thing will never see the light of day”. Antonio stated that PK had passed away two years ago and left his property to his nephews.

42. Justin Gomes gave evidence that he had first obtained a minor’s firearms permit at the age of 12. Justin acknowledged that he had ordered the two magazines on-line. He said that he had purchased them for a friend, PK, who had an old magazine that was broken. Justin explained that PK had known that he was familiar with computers and that he had previously ordered tractor parts for him. He and PK had discussed what the magazine was for and PK had stated that he had an old rifle, an SKS, and he needed a new magazine.

43. Justin stated that he had done research on-line and identified that an SKS rifle will take a magazine for an AK47 and had ordered that magazine on-line. Justin gave evidence that he had been present with his father when discussions had taken place with their solicitor regarding representations made to police. Justin stated that the solicitor had proposed that if a firearm was provided to the police, that would be sufficient for any problems to go away. Justin’s understanding of the reason that the matter did not proceed was that the police did not want to accept any firearm from a solicitor and the matter went no further. Justin said he had seen his father use the SKK rifles, which had been handed in when he was quite young.

38. Under cross examination Justin also acknowledged applying for internal review of the decision to revoke his firearms licence in 2014 and having read the internal review of that decision. Justin acknowledged that he knew that the SKS weapon issue loomed large in the police thinking concerning his licence. Justin stated that he didn’t say anything when applying in 2016 because PK had passed away, he had died about 2 years ago. When asked why he had not waived legal professional privilege in his conversations with the former solicitor, Justin said that he hadn’t discussed such an issue recently.

39. Justin stated that at the time he was obtaining weapon parts for a 70 year old neighbour he didn’t think it was odd that that neighbour was seeking to use an automatic weapon. Justin denied ever having seen, had possession of, or used, such a weapon and denied that he had obtained the magazine in order to use such a weapon.

40. Justin explained his decision to order the AK47 parts for his neighbour as because PK had asked him to do it and it was an inconvenience for PK to travel to town. Justin gave evidence that had ordered other parts which had been sent to his parents’ house where he was living, but that he had sent the magazines to his grandmother’s house, which is where his brother, Daniel, lived. The transaction had been entirely over the internet and he did not speak to the supplier.

41. Justin’s explanation for sending the order to his brother’s address was that he, Justin, had been travelling overseas to get married.

Jurisdiction and relevant statutory provisions

48. The Tribunal has jurisdiction to review the decision of the Commissioner pursuant to s75(1)(a) of the Firearms Act 1996 (NSW) and s9 of the Administrative Decisions Review Act 1997 (NSW).

49. Pursuant to s63 of the Administrative Decisions Review Act, in determining the application, I am required to decide what is the correct and preferable decision having regard to the material before me.

50. The issue of a firearms licence is governed by the Firearms Act 1996 (NSW). The underlying principles of that Act as set out in s3(1) are:

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

51. Section 11 of the Firearms Act provides in relation to an application for a firearms licence:

11. General restrictions on issue of licences

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

…

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

…

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

52. In Martin v Commissioner of Police, New South Wales Police Force [2010] NSWADT 276, Judicial Member Montgomery summarised the role of the Administrative Decisions Tribunal in reviewing a decision to revoke or refuse a firearms licence in the following terms:

68 The Tribunal’s role is to decide what the correct and preferable decision is having regard to the material then before it. The Commissioner contends that it is not in the public interest for the Applicant to hold a licence. It is necessary to consider that issue.

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

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

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

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

72. In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]

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

73. A firearm licence is a privilege and not a right. Responsibilities extended to 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 paragraph [25].

74. The underlying principles of the Act stated in section 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 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”.

53. In Kocic v Commissioner of Police, New South Wales Police Force (2014) 88 NSWLR 159, Leeming JA said at [93]:

The opening words of s 11(7) (“Despite any other provision of this section”) tell against a construction where the exclusion of some matters from one qualification upon power impliedly operates to exclude the same matters from a separate and overriding qualification to the power.

54. In that case White J said at [127]:

In my view the width of the public interest criterion in s 11(7) is not limited by the earlier provisions in s 11(3), the non-satisfaction of any of which will necessarily result in refusal of the application.

(see also the judgment of Basten JA at [41]).

Decision

55. I have determined that the Commissioner’s decision to deny each of the applicants a firearms licence was the correct and preferable decision. In respect of both applicants I consider that the failure to disclose the whereabouts of the SKS rifle in 2013 or to provide any explanation of the importation of the magazine at any time up to the filing of their statements in support of their applications in the Tribunal on 16 January 2017 was entirely inconsistent with the applicants being fit and proper persons who can be trusted to have possession of firearms without danger to public safety or to the peace.

56. In reaching this conclusion I have taken into account: the prior history of each of the applicants prior to 2013 of possession of firearms licences and firearms without any offence recorded against them; the fact that the bonds imposed upon the applicants in 2014 expired without incident; and the fact that neither applicant has been charged or convicted of any offence subsequently.

57. However, a prohibited firearm such as the SKS weapon for which Justin Gomes sought to import the magazine is a highly dangerous weapon which fit and proper persons would not assist in keeping concealed.

58. I am not persuaded that the applicants were telling the truth when they asserted that it was their neighbour, PK, who owned the SKS weapon for which Justin sought to import the magazine and I find that the applicants do have possession of or knowledge of the whereabouts of such a weapon. PK is dead, and can neither contradict the applicants’ evidence or be questioned as to the whereabouts of the weapon (the existence of which does not seem to be a matter in dispute).

59. The fact that Antonio did not agree to waive privilege in relation to his communications with Mr Lorkin at any time prior to the hearing, so that the police were not in a position to investigate or challenge the applicants’ version of the conversations with Mr Lorkin casts doubt upon Antonio’s credit. I am not persuaded that Justin had any understanding of the significance of the questions put to him in relation to the waiver of privilege.

60. In relation to Justin Gomes, his conduct in seeking to import parts for the weapon and having the parts addressed to his grandmother’s house further suggests that he is prepared to engage in subterfuge to achieve his objectives. That is, in my view, both a further reason not to accept Justin’s evidence and of itself a further indication that Justin Gomes is not a fit and proper person to hold a firearms licence.

61. Even had I accepted the applicants’ evidence that the weapon belonged to and had been in the possession of the neighbour, PK, I would nevertheless have found that the grant of a firearms licence to the applicants would be contrary to the public interest.

62. The failure of the applicants in 2013 to disclose what they knew about the whereabouts of the weapon indicates to me that I cannot be satisfied that there would be “virtually no risk” to public safety in the applicants being granted firearms licences. A fit and proper person would, in my view, have taken steps in 2013 to ensure the weapon was surrendered. I do not accept the applicants’ explanations (as set out in paragraphs 33 and 43 above) as to why they did not ensure that the weapon was handed in in 2013. I find those explanations artificial and unconvincing.

63. There are additionally further matters personal to each of the applicants which reinforce my view that the Commissioner’s decision to refuse each application was the correct and preferable decision.

64. In respect of Antonio Gomes, these matters relate to the fact that he claimed ignorance in 2013 of the need to store ammunition safety and gave evidence that he had not been familiar with the requirements of the legislation and had not kept up to date in relation to those matters. The fact that Antonio kept a large quantity of ammunition for which he had no current use under inadequate security does not suggest there would be no risk to the public if Antonio was granted a firearms licence.

65. I do not accept the submission made on behalf of the applicants that the “real danger posed” by the unsecured ammunition and prohibited weapons, the subject of the charges of which the applicants were convicted in 2014, was “very low” because the ammunition was in a separate locked and alarmed building to which only firearms licence holders had access.

66. The further matters personal to Justin Gomes relate to the fact that he sought to import a magazine for a prohibited weapon. Although he was not prosecuted for that conduct, he now freely admits to it. I consider that even if he was doing so as a favour to a neighbour, it was nevertheless conduct which indicates that he is not someone who can be trusted to have possession of firearms without danger to public safety or to the peace.

67. I have determined that the Commissioner’s decisions should be affirmed, without reference to the confidential material. I am persuaded on the basis of the material which was not the subject of confidentiality orders that the licences should not be granted.

68. However, I have reviewed the confidential material and the content of that material reinforces my view that the issue of a firearms licence to either of the applicants would be contrary to the public interest.

ORDERS

In proceedings 1610569:

(1) The decision under review is affirmed.

(2) Order pursuant to s64(1)(d) of the Civil and Administrative Tribunal Act prohibiting the disclosure to the applicant of:

(a) Exhibits E and F tendered by the respondent;

(b) Those parts of the record of hearing and any transcript of those parts of the hearing which took place in the absence of the applicant and his representative as identified orally in the course of the hearing;

(c) The confidential submission on behalf of the Commissioner of Police dated 2 March 2017.

In proceedings 1610570:

(1) The decision under review is affirmed.

(2) Order pursuant to s64(1)(d) of the Civil and Administrative Tribunal Act prohibiting the disclosure to the applicant of:

(a) Exhibits E and F tendered by the respondent;

(b) Those parts of the record of hearing and any transcript of those parts of the hearing which took place in the absence of the applicant and his representative as identified orally in the course of the hearing;

(c) The confidential submission on behalf of the Commissioner of Police dated 2 March 2017.

**********

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: 26 May 2017