Haitzler v Commissioner of Police, NSW Police Force

[2014] NSWCATAD 60

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Haitzler v Commissioner of Police, NSW Police Force [2014] NSWCATAD 60
Hearing dates:	26 & 27 August and 30 October 2013
Decision date:	12 May 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy, LCM, Deputy President
Decision:	The decision to revoke the applicant's category AC firearms licences is set aside.
Catchwords:	MERITS REVIEW - revocation of firearms licence under the Firearms Act 1996 - whether in the public interest for licence to be revoked - virtually no risk to public safety if firearms licence is retained
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 Firearms Regulation 2006 (NSW) National Parks and Wildlife Act 1974
Cases Cited:	Haitzler v Commissioner of Police, NSW Police Service [2003] NSW ADT (unreported, 19 March 2003) Hogan v Hinch (2011) 243 CLR 506 Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 O'Sullivan v Farrer (1989) 168 CLR 210 Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Category:	Principal judgment
Parties:	Jochen Haitzler (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Applicant (self represented) Sparke Helmore (Respondent)
File Number(s):	133139

reasons for decision

Introduction

1. Mr and Mrs Haitzler live on a property of approximately 5 hectares (12 acres) at Mt Wilson, in the Blue Mountains west of Sydney. The have over 200 fruit trees on their property. For many years Mr Haitzler has had a firearms licence which permits him to shoot birds and feral animals, such as rabbits and foxes. Mr Haitzler's neighbours, who have similar sized properties, object to the noise generated by the gun fire; feel disconcerted by the sound of what they assume are pellets landing in the trees and on rooftops; fear that Mr Haitzler may accidentally shoot a person in a neighbouring property or on bushwalking tracks adjacent to his property and are intimidated by Mr Haitzler's manner.

1. In January 2013, following a complaint from his next door neighbour, Mr Stein, the Commissioner of Police revoked Mr Haitzler's licence on 'public interest' grounds. Mr Haitzler applied to the Administrative Decisions Tribunal for a review of that decision. The two related issues in these proceedings are whether it is in the public interest for Mr Haitzler to continue to hold the licence and, if not, whether the licence should be revoked.

1. While I understand the neighbours' concerns about noise and accidental injury, I am not satisfied that Mr Haitzler's conduct, or the proximity of his property to other properties and walking tracks, means that there is a risk to public safety from his use of firearms. The Commissioner's decision is set aside and Mr Haitzler's licences are to be restored.

Procedural History

1. This matter was heard by the Administrative Decisions Tribunal (ADT) in May and October 2013. On 1 January 2014 the jurisdiction of that tribunal was taken over by the NSW Civil and Administrative Tribunal (NCAT). As the proceedings are 'pending proceedings', the provisions of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) continue to apply: Civil and Administrative Tribunal Act 2013 (NSW), Sch 1, cl 6 and 7.

1. The Tribunal's task is to determine whether the decision to revoke Mr Haitzler's licence is the 'correct and preferable' decision based on the all the material then before it and any applicable written or unwritten law: ADT Act, s 63. That means that the Tribunal is to take into account all the evidence, not just the evidence on which the Commissioner based his decision. The Tribunal may affirm, vary or set aside the Commissioner's decision to revoke Mr Haitzler's licence.

Mr Haitzler's licencing history

1. Mr Haitzler was issued with category A and category C licences on 9 September 1997 having previously held firearms licences since 1983. He has no criminal record.

1. At various times between February 2002 and May 2005, Mr Haitzler had an occupier's licence under s 121 of the National Parks and Wildlife Act 1974 which entitled him to shoot protected birds, such as crimson and eastern rosellas and bower birds, in order to protect his orchard. Those licences were not issued to any person, including Mr Haitzler, after December 2007. There was some evidence about whether Mr Haitzler was required to notify neighbours that he intended to use his firearms to kill native birds and if so whether he had complied with that requirement. While there was a history of dispute between Mr Haitzler and some of his neighbours including Mrs Stein about this activity, neither that dispute nor Mr Haitzler's degree of compliance with the scheme, bears directly on the issue of whether it is now in the public interest for a different kind of licence to be revoked.

1. In 2002 the Commissioner imposed a condition on Mr Haitzler's licence that he be restricted to using a shotgun. Mr Haitzler applied to the ADT for a review of that decision. The only issue in those proceedings was whether the risk to the public from stray bullets justified the imposition of the condition. The Tribunal set aside the imposition of the condition. The Commissioner offered no evidence to contradict Mr Haitzler's evidence that there was "virtually no risk": Haitzler v Commissioner of Police, NSW Police Service [2003] NSW ADT (Unreported, 19 March 2003); Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 at [28].

1. On 12 July 2006, police officers attended Mr Haitzler's property following a complaint from a neighbour. They found that Mr Haitzler had breached the safe storage requirements of the Firearms Act 1996 (NSW) and, on 1 August 2006, his firearms licence was revoked. On 12 December 2006 the Local Court found him guilty, with no conviction recorded, of "not keep firearm safely". The revocation of his licence was set aside following completion of a Firearms (Long arms) Licence Qualification course on 11 February 2007. In those circumstances I have not taken into account Mr Haitzler's failure to comply with safe storage requirements on that occasion as a matter which is likely to affect the issues to be considered in these proceedings.

1. On 1 January 2013, the Commissioner suspended Mr Haitzler's licence following a complaint from Mr Stein. Mr Stein told police that Mr Haitzler had assumed a menacing stance while holding a firearm just outside the boundary of his property. Mr Haitzler denies that he was carrying a gun at the time. The Commissioner seized Mr Haitzler's firearms - a Mossberg 12 gauge pump action shotgun and 3 X .22 calibre air rifles with scope. The Commissioner revoked the licence on 26 February 2013.

Legislative scheme

1. To be licenced to possess and use a firearm, a person must have a "genuine reason" Firearms Act, s 12. Mr Haitzler's genuine reason was "primary production". For that to be a person's genuine reason, the applicant must:

(a) be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and

(b) state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).

1. The reasons for decision raised some doubts about Mr Haitzler's status as a primary producer, but ultimately the Commissioner did not rely on an assertion that Mr Haitzler was not a primary producer.

1. A category A licence entitles the licensee to use air rifles, rimfire rifles (not self-loading), shotguns (not pump action or self loading), and shotgun/rimfire combinations. A category C licence entitles the licensee, subject to certain exceptions, to use certain self-loading rimfire rifles, self-loading shotguns and pump action shotguns: Firearms Act, s 8.

1. The Commissioner must not issue a category C licence unless the genuine reason for having such a firearms is primary production (or such other genuine reason as may be prescribed by the regulations): Firearms Act s 14(a). In addition to being a primary producer, the person must provide evidence to the Commissioner that there is a "special need" for having a self-loading rifle or shotgun or a pump action shotgun and that any such special need cannot be met by any other means, including by the authority conferred by a category A or category B licence: Firearms Act s 14(b) and (c).

1. In his application for a firearms licence in 2007, Mr Haitzler declared that his 'special need' for a category C firearm was:

Extermination of foxes, rabbits, feral cats, currawongs, crows, blackbirds. Immediate repeat shot(s) required if pest not destroyed with first round, pests enter from adjacent joint boundary Reserve/National Park.

1. The Commissioner did not dispute that Mr Haitzler had a 'special need' for a category C firearm. The decision to revoke the licence was not based on the absence of a 'special need'. In those circumstances, the suitability of other options such as netting the trees or using scare-crows or automatic noise-making machines is irrelevant.

1. The Firearms Act sets out the circumstances in which a firearms licence is automatically revoked and where the Commissioner may, or must, revoke a licence. Section 24(2) provides that:

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

1. One circumstance where the Commissioner may revoke a licence is for a reason 'prescribed by the regulations': 24(2)(d). Under cl 19 of the Firearms Regulation 2006 (NSW):

The Commissioner may revoke a person's firearms licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence.

1. The 'public interest' ground is the only ground on which the Commissioner relied to revoke Mr Haitzler's licence. The Commissioner did not submit, for example, that Mr Haitzler was no longer a 'fit and proper person' to hold a licence.

Meaning of 'public interest'

1. The term 'public interest' is not defined in the Firearms Act. Its meaning and the considerations that are relevant to take into account when revoking a licence because it is not in the public interest, must be ascertained by examining the context in which it appears and the scope and purpose of the Firearms Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505 applied, inter alia, in O'Sullivan v Farrer (1989) 168 CLR 210at 216, Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320 at 329 [13] and Hogan v Hinch (2011) 243 CLR 506 at 536 [31] and 548 [69].

1. The principles and objects of the Firearms Act are set out in s 3:

(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 supply 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.

1. On the basis of this provision, revocation on public interest grounds includes considerations of public safety. If public safety is put at risk by the possession or use of firearms by a licensee that is one basis on which a licence may be revoked.

1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel of the ADT made the following observations about the meaning of 'public interest':

25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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.

1. In Ward v Commissioner of Police Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [27] - [28] the Tribunal

27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

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

1. Similarly, where the ground for revocation is the public interest, the Tribunal must assess the effect on the public interest of the person continuing to hold a licence. Whether that effect justifies revocation will depend on the nature of the public interest and the degree to which it is affected by the person continuing to hold a licence.

1. In this case the circumstances which the Commissioner submits require the licence to be revoked on public interest grounds are:

(1)   the effect on neighbours of the noise generated by the firing of guns and the apprehension that neighbours feel when they hear gunfire or what they assume to be 'pellets' landing on their roofs or in their trees;

(2)   the risk that Mr Haitzler has intimidated and will continue to intimidate neighbours by carrying his gun in a menacing or defiant manner outside his property;

(3)   the risk that stray bullets will injure or kill a person walking outside Mr Haitzler's property.

Concerns about noise and 'pellets' falling

1. Mount Wilson is a rural village set in extensive bushland. Mr Haitzler's close neighbours have properties of approximately the same size as his, which is about four to five hectares or ten to twelve acres. The area is renowned for its beautiful gardens and bushwalking tracks. Mr Haitzler's property is immediately adjacent to that of Mr and Mrs Stein. Running along the back of both their properties is a grass track, Galway Lane. On the other side of that track is bushland.

1. Mr Stein says that in about October 2012 he heard guns being fired from Mr Haitzler's property. Immediately after hearing that sound, he heard what he believes to be shotgun pellets passing through the leaves above his property. Mr Haitzler denies shooting in the direction of Mr Stein's property. He says he has no reason to do that.

1. Mr Stein's gardener, Mr Beven, is fearful that he might accidentally be shot while he is working in the garden adjacent to Mr Haitzler's property. He said that he hears 'constant gunfire' during the day and that on occasions he found it very frightening. Mr Haitzler denies Mr Beven's assertion that he uses his firearm every day. According to Mr Haitzler, he may use it once or twice on a particular day and then not for days or weeks. I am satisfied that at certain times of the year Mr Haitzler fires his gun once or twice a day but that at other times, especially during winter, he may not fire his gun for several days or weeks.

1. On the other side of Mr Haitzler's property, across Stephen Lane, is a property on which Mr Ryan has lived since 2004. He gave evidence that shortly after he hears shots being fired from the direction of Mr Haitzler's property, he hears a sound in the trees like very light hail which he believes are pellets. He says when he is walking in the bush and hears a shotgun being fired, it is a bit disconcerting. He is concerned about his safety, particularly in relation to the falling pellets although he agreed that they would not harm him. He did not agree with Mr Haitzler's suggestion that the sound of 'light hail' may be the wind in the trees.

1. Mr Dempsey has been Mr Ryan's gardener since March 2004. He says that each time he is there, he hears firearms being discharged 'once or twice' from the direction of Mr Haitzler's property. Mr Dempsey also says that in 2010 he heard the sound of metallic pellets falling on a slate roof that is part of the car port attached to the Ryan's house. While he did not feel in any danger from the falling pellets, he said it was disturbing that a gun was being fired about 100 meters away.

1. Mr Haitzler denies that the pellets could possibly be from his gun because he does not fire from a place where they could land on the roof.

1. About 15 years ago, Mr Thompson, who is also a close neighbour, was in dispute with Mr Haitzler over his shooting of native birds. On one occasion he called the police. Mr Haitzler contacted the local council when he detected what he regarded as illegal burning activities near Mr Thompsons' property. Mr Thompson expressed concern about Mr Haitzler's current shooting activities because of the close proximity of the neighbouring properties. In his view the impact on their quiet rural environment is unfortunate.

1. Another neighbour, Ms Halliday, who has owned a property near Mr Haitzler's for 13 years, says she is disturbed by the noise of guns shots but is not concerned about her own safety.

1. Mr England, a neighbour who lives on the other side of Shadforth Lane from Mr Haitzler, said that he is startled by the sound of gunshots when he is enjoying the peace and quiet in his garden. He does not feel comfortable with a gun being discharged so close to his house, particularly when he and members of his family are in the garden. He has also found approximately six dead birds in his property in the last 12 months which he has assumed have been killed by gunshots. While he agreed with Mr Haitzler's proposition that they could have been killed by birds of prey, the flesh was not eaten so he stood by his assumption that they died from a gunshot wound. Even if the birds have been shot by Mr Haitzler, he had a licence to do so.

1. Sergeant Brown was an Operational Safety Trainer for 9 years before taking up his position at Katoomba Police Station. He holds a senior instructor accreditation within Weapons and Tactics, Policy & Review. He gave expert evidence that the maximum range of firearms can be affected by factors including wind, air resistance and humidity. A shotgun loaded with shot shells such as that seized by police from Mr Haitzler (number 7 ½ shot) can have a maximum range of approximately 190 meters. In addition, shot from a shotgun discharge can spread widely. At a range of 35 meters, the shot discharged from a shotgun has the potential to spread between 101 - 147 cm. A .22 calibre rifle firing a 40 grain projectile can have a maximum range of approximately 1340 meters. He said he did not know whether a person would be injured, if he or she discharged a firearm vertically into the air and the pellets came down on that person.

1. According to Mr Haitzler, given the speed of sound and the speed with which the shot exits the muzzle, the sound would arrive at a distance of 36 meters from where the shot was fired, three hundredths of a second before the shot arrives. Because of the sonic boom one would not hear the shot hitting an object such as tree branches or leaves.

1. Several neighbours are understandably disturbed and annoyed by the sound of gun fire coming from Mr Haitzler's property. But I am not satisfied that the sound of gunfire, or of pellets falling through trees or on rooftops, if that is indeed causing the noise, gives rise to any risk to safety. The public interest in preserving a quiet and peaceful environment is significant but I do not understand the Commissioner's submission to be that the preservation of the quiet enjoyment of the neighbourhood justifies revoking Mr Haitzler's licence.

Intimidation of neighbours

1. Neighbours gave evidence of two occasions on which they felt intimidated by Mr Haitzler when, on their version, he was carrying a firearm. The first incident relates to Mr Dempsey and occurred in 2004 or 2005. The second incident is the incident reported by Mr Stein that took place on 1 January 2013.

1. Mr Dempsey made a statement on 8 January 2013 in which he said that while working on the Ryan's property he was confronted by Mr Haitzler who had a rifle over his shoulder pointed at him. He stood up from weeding along the boundary fence and felt 'particularly unnerved' by this incident. In a later statement, dated 17 July 2013, Mr Dempsey said that the incident took place in 2004 or 2005 when he was working on a boundary fence in an area that adjoins Mr Haitzler's property. He was cutting a fallen tree with a chainsaw. Mr Haitzler, who was carrying a firearm, approached him and asked him who he was. He says the firearm was over Mr Haitzler's shoulder but the barrel was pointed in his direction. He felt intimidated.

1. I am satisfied that this incident occurred as reported by Mr Dempsey. Given that the incident occurred some time ago, his credibility is not affected by the fact that he corrected himself by saying that he now recalls that he was using a chain saw, not weeding. The fact that he did not report it to police does not make it less likely that it happened because Mr Haitzler did not verbally threaten him or cause any injury.

1. The critical event which led the Commissioner to suspend and then revoke Mr Haitzler's licence took place on 1 January 2013. In the statement recorded by police that day Mr Stein said:

I saw Haitzler walking along my back fence. This area backs on to crown land. He was carrying a rifle at the time. I said to him, 'What are you doing?' He stood staring at me in what I would call a menacing manner. He replied, "I can do whatever I want." I told him to go away and get away from me. I watched him walk away and it was then that I saw his car parked on the side of the road. He is doing this on a regular basis with and without guns. My son lives in a nearby cottage and constantly sees him watching him, with his firearms in tow. I feel an apprehension about him and this sort of behaviour. I want to be able to garden or feed my chickens without being confronted by a man with a gun.

1. In a later statement Mr Stein said:

Mr Haitzler stood in a menacing stance which I believe was meant to intimidate me. He was standing facing me with his rifle across with one hand around the butt and one hand around the barrel armed across his chest with the barrel pointing over his left shoulder. He just stood there and just stared at me and said, "I can do whatever I want" and shook the rifle in his arms to emphasise the point. I said, "Well that's what you think, you can just fuck off."

1. After speaking to Mr Stein that day, Senior Constable Davies and Sergeant Brown spoke to Mr and Mrs Haitzler. According to Senior Constable Davies, Mrs Haitzler told police that they would have to wait to speak to her husband because he was still in his pyjamas. After what Senior Constable Davies referred to a as a 'short period,' Mr Haitzler came to the door. Senior Constable Davies speculated that Mr Haitzler may have used that time to secure his firearms.

1. Mr Haitzler denied taking a firearm in his car when he went out that morning or holding a firearm when he saw Mr Stein. Mrs Haitzler gave evidence that her husband did not take a firearm with him because she did not see or hear him take a firearm from the gun cabinet. When he returned she helped him carry trays of fruit that he had picked into the house. She did not see any firearms in the car at that time. An assertion by Senior Constable Davies in his statement of 30 January 2013 that Mrs Haitzler told him that her husband had not been out that morning is not reflected in the more contemporaneous COPS Event (Ref E 49625109) prepared on the day. I am not satisfied that Mrs Haitzler made that comment.

1. Mr Haitzler's version of events is that at about 8 am that morning he drove from his home to the pond located down a track about 100 meters from Galway Lane. After turning on the pump to pump water into one of the dams on his property, he went back to Galway Lane and got out of his car at the back of Mr Stein's property to look at some ducklings. He says he was not aware that Mr Stein was in his garden until he heard him yelling at him saying, "I paid two men for one day to clean out the pond, what did you do? You are the worst neighbour I can think of." Mr Haitzler says he got back into his car and drove off.

1. Mr Haitzler speculates that Mr Stein's motivation for yelling at him was that he had pumped water out of the pond after Mr Stein had paid to have it cleaned. Mr Stein denies that there was a conversation about who had responsibility for cleaning out the pond and said they had spoken about that matter on another occasion. In a statement dated 7 February 2013, five weeks after this incident, Mrs Haitzler said that her husband had told her that he and Mr Stein had had a conversation about the maintenance of the pond on 1 January.

1. An inspection by police that day revealed that Mr Haitzler's firearms and ammunition were stored correctly. Nevertheless the police officers considered that given the history of conflict between the two neighbours, and the fact that the allegation involved a 'personal violence' matter, Mr Haitzler's licence should be suspended and his firearms seized. Senior Constable Davies also noted that Mrs Haitzler had said several times in relation to Mr Stein's allegations, "Well, if they can lie then maybe we should start to lie about them."

1. I am not satisfied, on the balance of probabilities, that Mr Haitzler was carrying a firearm at the time Mr Stein spoke to him. I find it credible that Mr Haitzler got out of his car to look at some ducklings and that he did not know that Mr Stein was in his garden until he called out to him. I am also satisfied that they had a conversation about the pond. There is a long history of animosity between Mr Stein and Mr Haitzler. Mr Stein was concerned that his son, who lives in a nearby cottage, feels intimidated by Mr Haitzler. When he saw Mr Haitzler at the back of his property that day, Mr Stein became angry and called out to him. It was Mr Stein who initiated the conversation. While he mentioned to police who took a statement from him that Mr Haitzler was carrying a rifle at the time and stood staring in a 'menacing manner,' it was not until much later that Mr Stein suggested that Mr Haitzler had shaken the rifle while it was across his chest, to emphasise his point that he could do whatever he liked.

1. My conclusion is also supported by the fact that both Mr and Mrs Haitzler deny that he had a firearm with him that morning. I am not satisfied that Mrs Haitzler ever told a police officer that her husband had not gone out that morning because that comment was not mentioned in the contemporaneous record. I am also satisfied that although she said that 'maybe we should start lying about them' she did not actually lie about anything. She made that comment in anger given her perception that Mr Stein had lied. The delay in time between Mr Haitzler coming to the door is explainable by the fact that he was not dressed appropriately at the time. It is mere speculation on the police officer's part that he spent that time securing his firearms.

1. Mr Stein's son, who Mr Stein says was in the garden at the time, did not give evidence and I have assumed that any evidence he may have given would not have supported Mr Stein's version of events: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

1. Although Mr Haitzler was not carrying a gun on this occasion, I am satisfied that he stood in a defiant manner staring at Mr Stein and responding to his allegations. There is a public interest in promoting harmonious relationships among neighbours, but given the extent of neighbourhood disputes in which Mr Haitzler is involved relating to issues other than firearms (which I have not referred to in detail because of their marginal relevance) it is unlikely that revoking his licence will achieve that end.

1. I am satisfied that Mr Haitzler was carrying a firearm when Mr Beven saw him several years ago. While it would be unnerving to be questioned by a person carrying a firearm Mr Haitzler knows that he must not carry his firearm outside his property and I am satisfied that he no longer does so. In all the circumstances neither of these incidents suggest that there is a future risk to public safety if Mr Haitzler continues to be licenced.

Risk of injury or death by stray bullets

1. Mr Thompson is concerned about stray bullets hitting people walking along Shadforth Road which is the road that separates his property from Mr Haitzler's. He admitted that he did not know how far a bullet could travel. Mr Stein's gardener, Mr Beven, was fearful that he might accidentally be shot while he is working in the garden adjacent to Mr Haitzler's property.

1. Mr Ryan is also concerned about the risk to those walking along Stephen Lane and Galway Lane at the back of Mr Haitzler's property. He estimates about 200 people would walk along those tracks in a season. He says that they are at risk of accidental injury from the discharge of a firearm. Mr Beven, says that he has seen people walking in Galway Lane.

1. In 30 years Mr Haitzler says there have been no complaints by a bush walker or tourist about his firearms activities. The only complaints have come from neighbours.

1. I am satisfied that people walk along Galway Lane and Stephen Lane from time to time and that Mr Haitzler would not always be able to see those people from his property because of the fact that there are many high trees obscuring the view including some along his boundary fences. I do not accept Mr Haitzler's evidence that he could see a person walking in Galway Lane at all times from the location where the peach trees are growing.

1. Whether or not a shot fired from a shot gun could accidentally strike a person outside his property depends on many factors including the range of the firearm, the angle at which the shot is fired, the location from which Mr Haitzler shoots and the weather conditions.

1. Sergeant Brown gave expert evidence that the maximum range of shots fired from Mr Haitzler's shot gun is about 190 meters. Mr Haitzler agreed with that evidence. The range may be less depending on weather conditions. Shot fired at the location of the cherry and apple trees on Mr Haitzler's property could reach Galway Lane. A shotgun fired at 30 degrees could kill a person who was between 80 and 100 meters away. A lead pellet from an air rifle can also injure or kill a person at close range. They do not pose such a risk at longer ranges of between 40 to 50 meters.

1. Because of the range of a shot gun, it is possible that if Mr Haitzler fired towards Galway Lane or Stephen Lane from a position less than 190 meters inside his boundary fence, he could injure or kill a passer-by who was obscured from his view. Mr Haitzler's evidence is that when shooting rabbits or foxes, which he does once or twice a year, he fires with his back to Mr Stein's property up a gentle slope into his own property. He also says he fires in the air towards the tree tops to scare the birds away from the fruit trees. He says he never uses a firearm closer than 150 meters from Mr Ryan's property.

1. Firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety: Firearms Act, s 3. As the Tribunal said in Ward, the Tribunal must be satisfied that there is 'virtually' no risk to public safety from a particular person or people being licenced under the Act. Assessing risk is a difficult task but in the circumstances of this case I am satisfied that there is 'virtually no risk' of injury or death to a person walking outside Mr Haitzler's property from the deliberate or accidental discharge of a firearm. While there is a theoretical possibility of that happening it would require a highly unlikely combination of events including weather events.

1. In particular, it would require Mr Haitzler to abandon his usual practice of shooting into the air at birds in his trees and instead to shoot directly towards the boundaries of his property at a distance of 190 meters or less. Alternatively, it would require Mr Haitzler to abandon his practice when shooting rabbits or foxes of shooting away from Mr Stein's boundary into his own property. The existence of a theoretical possibility of injury or death is not sufficient, in my view, to justify the revocation of Mr Haitzler's licence. Under the current circumstances and legislative scheme if Mr Haitzler is a primary producer with a 'special need' for a category C licence and meets all the other statutory requirements, he is eligible to hold a category AC licence. Based on current circumstances, I am not satisfied that it is in the public interest for Mr Haitzler's licence to be revoked.

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

Amendments

14 May 2014 - Renumbered paragraphs

Amended paragraphs: Paragraphing

Decision last updated: 14 May 2014