Johnston v Commissioner of Police

[2021] NSWCATAD 231

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Johnston v Commissioner of Police [2021] NSWCATAD 231

Hearing dates:

3 April 2021

Date of orders:

11 August 2021

Decision date:

11 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof GD Walker, Senior Member

Decision:

Decision under review affirmed

Catchwords:

LICENSING – firearms licensing – licence revocation -transportation of firearm – failure to notify additional ground for licence – public interest.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Artridge v Commissioner of Police [2021] NSWCATAD 188;

Bottomley v Commissioner of Police [2005] NSWADT 211;

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 42;

Carl Zeiss Stiftung v Rayner and Keeler (No. 2) [1967] 1 AC 853;

Constantin v Commissioner of Police [2013] NSWADTAP 16;

Re Appeal of Diamond (Unreported) District Court 5 October 2017;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

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

Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59;

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

McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354;

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354;

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;

Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272;

Category:

Principal judgment

Parties:

Luke M Johnston (Applicant)
Commissioner of Police (Respondent)

Representation:

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

File Number(s):

2020/00111698

REASONS FOR DECISION

1. The applicant Mr Luke Mark Johnston applied to this tribunal on 14 April 2020 for review of a decision by the respondent Commissioner on 2 April 2020 to revoke his category AB firearms licence. The applicant had been issued with the licence for the reasons of recreational hunting and vermin control on 14 July 2015, to expire (after renewals) on 14 July 2020, but the Commissioner revoked it on 12 December 2019, that decision being affirmed following an internal review on 2 April 2020.

2. The applicant had earlier been warned by police about possible breaches of the safe storage requirements in s 39 of the Firearms Act. On 5 April 2007, he was found in the course of an RBT traffic stop to be carrying three rifles with the bolts fitted. Police believed he was not taking reasonable precautions to ensure their safekeeping and issued a warning.

3. On 9 July 2009 when stopped by police in Nyngan he was found to be transporting a firearm that was loaded and unsecured. He was again warned about his failure safely to store his firearms. At that time, before the enactment of cl 149 of the Firearms Regulation 2017, there was no specific legislation laying down requirements to be observed in the non-commercial transportation of firearms.

4. Subsequently, on 26 September 2019, in the course of an RBT traffic stop in Cobar, police saw that he had a rifle mounted inside his vehicle across the dashboard. He was also carrying a box and a magazine containing 673 rounds of ammunition. Police impounded his firearms and ammunition and he was charged with the offence of not keeping a firearm safely. Following representations by his legal representative, the charge was withdrawn on 10 October 2019 and replaced with penalty notices, as he had asked to have his firearms licence returned for work purposes. He appealed to the Local Court against the penalty notices, and was acquitted on both counts on 29 March 2021.

5. After the police prosecutor had agreed to issue penalty notices in substitution for the charge of not keeping a firearm safely, Senior Constable Greshner of Cobar police on 28 October 2019 emailed the Firearms Registry recommending that his firearms licence be revoked. The charge of failure to keep a firearm safely was withdrawn at Cobar Local Court on 27 November 2019.

6. The applicant lodged a fresh application for a business licence for the reason of vertebrate pest animal control as a professional contract shooter on 29 January 2020. That application was refused, but it is not the subject of these proceedings, which are concerned solely with the revocation of the applicant’s AB firearms licence issued for recreational hunting purposes.

Applicable legislation

7. Firearms licence revocation is covered relevantly by s 24(2) of the Firearms Act:

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.

8. Clause 20 of the regulation provides that “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

9. The general requirement for the safe storage of firearms is set out in s 39:

39   General requirement

(1)  A person who possesses a firearm must take all reasonable precautions to ensure—

(a)  its safe keeping, and

(b)  that it is not stolen or lost, and

(c)  that it does not come into the possession of a person who is not authorised to possess the firearm.

Maximum penalty—50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

Note—

Reference to a pistol includes a prohibited pistol.

(2)  The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

10. Clause 149 of the Firearms Regulation 2017 lays down specific requirements governing the transportation of category A or B firearms, as follows:

149   Requirements for non-commercial transportation of Category A and B firearms

(1)  A person who transports a firearm to which a category A or category B licence applies and that the person possesses under the authority of a category A, category B or firearms collector licence must convey the firearm in accordance with the following requirements—

(a) the firearm must be conveyed in a manner that ensures compliance with section 39 of the Act,

(b)  the firearm must not be loaded with any ammunition while it is being conveyed,

(c)  while the firearm is being conveyed in a vehicle it must not be visible from outside the vehicle….

11. The issue in this case is whether the tribunal should exercise its discretion under s 24(2) to affirm or to set aside the revocation decision by reason of any one or more of the following:

1. the applicant’s contravention of a provision of the act or regulations under s 24(2)(b)(ii),

2. contravention of a condition of the licence under s 24(2)(b)(iii), or

3. that it would be contrary to the public interest for the applicant to continue to hold the licence.

12. The applicant’s license, had it not been revoked, would by now have expired, and the tribunal has no power to direct that it be reissued. It is common ground between the parties that the revocation decision, if not set aside by the tribunal in these proceedings, could present an obstacle to a future application by the applicant.

Respondent’s evidence

13. The respondent called no oral evidence but relied on certain written material, including the s 58 documents (exhibit R1) and a number of statements by police officers.

14. In a signed statement dated 14 July 2020 (exhibit R2), Detective Senior Constable Christy Greshner of Bourke police station related that on 26 September 2019 she was one of the police officers attached to Central North Police District conducting patrols in the Cobar and Nymagee sectors. In the course of those patrols, they stopped a vehicle of which the applicant was the driver at 3 PM in Cobar to administer a random breath test. At that time she observed a Sako .223 rifle on a mounted railing on the dashboard, with the muzzle facing outside the driver side towards her.

15. A search of the vehicle disclosed that the rifle was not loaded, but the bolt was fitted and there were numerous .223 rounds loose within the cabin, and a plastic storage box containing boxes of .223 cartridges. She arranged for the rifle to be seized and served the applicant with a notice of suspension of his firearms licence. He was charged with an offence under s 39(1)(a) of the Firearms Act, but following representations by the applicant’s solicitor, the charge was withdrawn and replaced with a penalty notice. Detective Greshner had opposed that request, considering that the matter should proceed to be determined by the Local Court. Nevertheless, the prosecutor determined that the charge should be withdrawn and replaced with an infringement notice. She subsequently issued him with penalty infringement notices on 28 October 2019 of failure to keep a firearms safe ($550) and failure to prevent a firearm from being lost or stolen ($550).

16. On the same day she wrote to the Firearms Registry recommending that his firearms licence be revoked on the ground of failure to comply with the Act and regulations. She considered his actions to be complacent and negligent, particularly for someone who had held a firearms licence for some 15 years and should have been aware of the requirements.

17. The respondent also tendered a later statement by Detective Greshner, dated 21 April 2021 (exhibit R3), in which she recalled that as her vehicle approached the applicant’s vehicle, she could see a firearm on the dashboard in clear view. She initiated a traffic stop and after approaching the driver side of the car submitted the applicant to a breath test, which returned a negative result. “It is generally standard procedure for drivers to be submitted to a breath test when they are pulled over in relation to other offences”. While that was occurring she had a clear view of the firearm in brackets on the dashboard which she believed was able to be clearly seen by members of the public. The muzzle was directly facing where she was standing at the driver’s side window. When she asked him why his firearm was not secured, he replied “I just thought they weren’t allowed in view”. At the time she also had a short conversation with Detective Scott Holyday, informing him of what she had seen.

18. Detective Greshner also had a short conversation with Plainclothes Senior Constable Harry Johnston-Burt and Detective Senior Constable Simon Abbott, who assisted in removing the rifle from the dashboard and began searching the vehicle. She expressed the view that the applicant’s actions on that day were complacent and negligent, particularly for someone who had held a firearms licence for approximately 15 years. She also did not believe he had demonstrated any accountability or awareness that his actions were in breach of the statutory requirements.

19. In a statement dated 24 September 2020 (part exhibit R3), Detective Senior Constable Abbott described how he had stopped to assist Detective Greshner and immediately saw a bolt action rifle with a telescope on brackets mounted near the vehicle’s dashboard, with its muzzle pointing towards the driver’s window. He formed the view that it was not secured properly by the accused.

20. Plainclothes Senior Constable Harry Johnstone-Burt, who had been accompanying Detective Abbott, also stated (part exhibit R3) that he saw a bolt action rifle sitting on brackets mounted near the vehicle’s dashboard. It was positioned in such a way that the barrel pointed in the direction of the driver’s side window. He also attached a number of photographs that he had taken of the scene.

21. Detective Senior Constable Scott Holyday recalled in his statement dated 10 June 2021 (part exhibit R3) that at the time he had spoken to S/C Greshner by telephone and recalled her telling him that she was near the Caltex on Marshall Street, Cobar and saying words to the effect that, “I was driving along and saw this car with a gun on the dash“.

Applicant’s evidence

22. The applicant tendered a signed statement dated 15 June 2020 in which he pointed out that he has only ever been spoken to twice before about the security of his firearms while he was transporting them, not on three occasions as the internal review suggested. On neither of those occasions was he breaching the law, given that the firearms were in the vehicle with him while he was driving. There was no provision then in the regulations about them not being seen from outside the vehicle and he was clearly complying with the conditions of s 39 of the Firearms Act.

23. While he had a few driving infringements some time ago, he had learned his lesson and had moved on.

24. He intended to derive an income from being a professional kangaroo shooter, and for that purpose had lodged an application with the Firearms Registry for his licence to reflect that.

25. At the time he was pulled over for a random breath test last year [2019], he believed he was complying with the legislation, in that the firearm was mounted behind the bracket that was holding it, which was only slightly higher than the top of the dashboard. The vehicle has heavily tinted windows and he was in close proximity to the firearm while he was transporting it. The provisions of s 39 were complied with, in that the firearm was safely kept, was not lost or stolen and could not come into possession of any unauthorized person.

26. He questioned the purpose of cl 149 of the 2017 Firearms Regulation and the practicality of part (1)(c), as to whether a firearm could be seen from outside the vehicle when a person accompanying it is present with it. Clearly, if a firearm were left unattended, then all reasonable precautions would dictate that it could not be seen from outside the vehicle.

27. At all events, he believed that if it were decided that a breach had occurred, it was of a technical and trivial nature. He would then modify how he transported his firearm in the future. He did not believe he had breached any laws in relation to the transportation of ammunition.

Applicant’s submissions

28. In written submissions on behalf of the applicant, Mr Kable contended that the respondent was issue estopped from relying on an alleged breach of s 39 of the Firearms Act. The three preconditions that must exist before issue estoppel can apply, as laid down in Carl Zeiss Stiftung v Rayner & Keeler (No. 2) [1967] 1 AC 853, 935, were that the first decision was final, the same question has been decided and between the same parties, or at least parties with the same legal interest, were the same.

29. In the present case the decision of Wilson LCM (part exhibit R2) was final, whether the same question has been decided could be ascertained by reference to the judgment as handed down, under which the question was one of law, rather than on the evidence. In this case the matter turned on the interpretation of the law, specifically cl 149, and how that was to be read to ensure compliance with s 39(1)(a). As cl 149 contained no penalty provision it therefore had to be read in conjunction with s 39. The same parties were relevant to each action.

30. The firearm was not lost or stolen, nor did it come into the possession of any unauthorized person. Wilson LCM had ruled that the firearm was safe. The matter was decided on a question of law, namely how cl 149 was to be construed when the possessor of the firearm was seated with the firearm only centimetres away in an enclosed environment of a vehicle cabin. The standard of proof therefore did not arise, and the tribunal consequently could not rehear the matter. To say that leaving the firearm exposed increased the possibility of theft, as the respondent submitted, was purely conjecture. The applicant was taking every precaution to ensure its safe keeping, by analogy with Diamond v Police, Newcastle District Court, 5 October 2017. As Ellis DCJ also said in Diamond, a court in determining the meaning of penal provisions should give a narrow rather than broader interpretation of legislation, given that criminal sanctions may apply. It was submitted that a new precedent had been set by the ruling in the Nyngan Local Court on the interpretation of cl 149.

31. In relation to the transporting of the ammunition, the ammunition charge was also dismissed by the Local Court, in that the applicant was present with the ammunition and in the context of the law the ammunition was “Safe”. His Honour had taken the view in Diamond that any prosecution for an offence under s 40(1)(d) in relation to ammunition located in the licensee’s vehicle was misconceived and doomed to fail, given that both the ammunition and the firearm were not being stored but rather were being transported to another location (at 14-16).

32. The applicant then turned to the respondent’s contention that the applicant had contravened s 7A by using a firearm for a purpose other than that in connexion with which it was issued. The applicant has been licensed as a recreational hunter for the purposes of the Act, but had subsequently been offered a role as a professional shooter and had, admittedly after the alleged incident, applied for a business licence to perform such a role. There was no evidence that he had performed as a professional contract shooter, only a comment made by his legal representative without context. There was no proceeding against him on that basis in the courts, but even if the applicant has been undertaking that task, such activity would not make the applicant any less safe and could not reach the threshold for revoking a licence. In Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91, [32] Lees JM had pointed out that not all contraventions or breaches warranted the exercise of the power to revoke: “There must be something more to be taken into account. It is suggested in another Tribunal decision… That there may be a trivial or excusable contravention or breach which may not warrant the exercise of the discretion against a licensee, whereas a fundamental breach may”.

33. The submissions also raised the question of costs. On 15 April 2021, the applicant’s representatives wrote to the respondent’s representative notifying them of the outcomes of the Local Court proceeding and placing them on notice that if the matter were to proceed in the tribunal, costs would become a factor. The respondent had unreasonably prolonged of the proceedings as the applicant’s licence had been revoked, ostensibly on the recommendation of Detective Greshner, after the charges had been withdrawn and replaced with a penalty notice only. The rationale behind creating penalty notices is that there would be no further penalty. There were material contradictions in Detective Greshner’s evidence and there appeared to have been a persistent, determined and vexatious campaign to revoke the applicant’s licence.

34. The sole cause of action in these proceedings was to challenge the decision of the Local Court which, the applicant contended, is unchallengeable, given that it was decided on a question of law. There were special circumstances justifying the award of costs in this matter.

28. In further written submissions in reply, the applicant submitted that the statement of S/C Holyday be given very little weight, given that this was the first time he had provided any information in the nearly 2 years since the case commenced, that he was not actually present and that his statement related to dialogue from a telephone call of which the exact particulars are not precise. It was also relevant that he was closely associated with the officer in charge [Detective Greshner], as appeared from an attached Facebook post, and she had witnessed his statement, all of which supported the applicant’s claim that the officer in charge had been acting in a vexatious and malicious manner towards the applicant.

29. The respondent’s submissions in relation to issue estoppel relied on matters turning on a finding of guilt of the applicant, whereas in this case the matter turned on a finding of not guilty, based on a question of law. The tribunal could not overrule a decision of the Local Court. If there had been any doubt, the respondent had the opportunity of appealing to the District Court, but that did not occur. For the respondent to declare that they believed that Wilson LCM’s decision was incorrect was improper. His Honour had rightly decided that the firearm was “safe”, and the respondent was now estopped from raising that issue again.

30. The respondent’s suggestion that the parties were not the same in the two matters was disingenuous. The police were obviously behind both matters.

31. In oral submissions at the hearing Mr Kable contended that the event reports relied on by the respondent were inconclusive and amounted to little more than suspicion. The respondent’s reliance on Artridge v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 188, [72] did not assist, as the tribunal had decided the matter in favour of the applicant, and specifically stated that there was no evidence of risk in the s 7A contravention in issue, as was also the case in this matter.

32. The rifle mounted on the dash was seen in the course of an RBT traffic stop and there was no breach of the law as the firearm was held by the Local Court to be safe and issue estoppel applied. As regards his reason as stated in his licence application, his work in connexion with professional contract shooting might have been as an offsider only. That would have been permissible under the legislation.

Respondent’s submissions

40. The respondent relied on detailed written submissions filed on 26 April 2021 and 2 July 2021 respectively. There were also earlier submissions filed on 14 July 2020 (part exhibit R3).

41. After setting out the background to the application and the applicable law, the respondent submitted that the applicant had contravened s 39 of the Act and cl 149 of the regulation in that he failed to take all reasonable precautions to ensure the safekeeping of his firearm and conveyed it in a manner that made it visible from outside the vehicle. By leaving it exposed, it was possible for members of the public to observe its location and existence, which increased the possibility of theft. The applicant’s conduct was all the more serious given that he had previously been warned by police on two occasions, on 5 April 2007 and 9 July 2009, about his safekeeping of firearms that he was transporting.

42. A police fact sheet dealing with transportation of firearms that has been available to licence holders on the Internet since at least 2008 recommended that category A and B firearms should be conveyed in the same manner as required of those in categories C, D and H, including that the firearm be rendered temporarily inoperable, for example by removing the bolt, and that it should be kept in a locked container properly secured to, or within, the vehicle.

43. In contrast with the situation in Diamond, which was relied on by the applicant, the applicant’s rifle was not packed securely in a case and placed in a part of the car that would ensure it was not visible from outside the vehicle. It remained visible despite the windows being tinted and was not only visible when the windows were wound down. Further, the applicant was at the time driving through a busy town when stopped by police.

44. There was no exception under cl 149 for circumstances where the licensee was in attendance with the firearm being conveyed. Although the presence of the licensee would be one factor relevant to whether “all reasonable precautions” within s 39(1) were being taken, it could not operate as a complete defence for a licensee failing to comply with prescribed requirements. Thus, in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272, [65], the tribunal accepted that the applicant was in breach of cl 149 when he had been found sitting in his parked vehicle with his firearm visible in the cargo compartment. The applicant in that case had pleaded guilty before the Local Court to a charge of not keeping a firearm safely.

45. Further, it is a condition of all licences that the licensee must comply with the relevant safekeeping and storage requirements under the Act. By failing to take all reasonable precautions and allowing his rifle to be visible from outside the vehicle, the applicant had also contravened a condition of his licence. Even when safekeeping contraventions lie at the lower end of the scale of seriousness, they can evidence an attitude that is still significant when determining whether a person should have a licence: Bottomley v Commissioner of Police [2005] NSWADT 211, [18] – [19].

46. The respondent also submitted that the applicant had contravened s 7A by using his firearms for a purpose otherwise than in connexion with the purpose established by him as being the genuine reason for possessing or using the firearm. The only reason he had ever given was recreational hunting and vermin control. Nevertheless, he had told police during the incident on 26 September 2019 that “his job is to cull vermin on properties” (exhibit R2, para 20). His solicitor has also informed the Firearms Registry that the applicant is a “professional shooter” and needed the suspension on his licence to be lifted “to allow him to resume working” (exhibit R1, p 51).

47. The applicant had since applied for a business licence for the reason of vertebrate pest animal control – professional contract shooter, which included a letter from his tax agent confirming that “Luke operates a kangaroo harvesting enterprise and earns his income from a business of primary production”. That application was refused on 3 April 2020 and was not the subject of the present proceedings.

48. The respondent also submitted that the licence revocation should be upheld on the ground that it was not in the public interest for him to continue to hold the licence, within s 24(2)(d) and cl 20. There were three reasons for this: first, he had contravened s 39 and cl 20 by failing to take all reasonable precautions to ensure the safekeeping of his firearm and to ensure that it was not visible from outside his vehicle when being conveyed. His conduct and attitude towards safekeeping and conveyance demonstrated a lack of requisite knowledge or regard for the strict requirements of firearms possession.

49. Specifically, when his rifle was seen by police on 26 September 2019, it was pointing directly outside the applicant’s open driver’s side window, facing towards approaching police. His complete disregard for the safe keeping requirements were exhibited through his numerous contraventions of the Act and regulation. Viewed as a whole, his conduct demonstrated that he has an insufficient understanding of his obligations and duties as a licensee.

50. Secondly, his use of firearms as a “professional shooter” when he had only been licensed for recreational hunting and vermin control was both the contravention of the Act and inconsistent with the objects of the act, which include “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”. Under cl 16, if there is any change to a particular stated in a firearms licence (including the removal or inclusion of an additional genuine reason), the licensee is to notify the Commissioner within 14 days. The applicant did not seek to inform the Commissioner or seek an additional genuine reason for his licence.

51. Thirdly, he was also found in possession of 673 live rounds that were not stored in a locked ammunition box, as well as an unlocked heavy duty storage box containing 10 cases of ammunition. Failure properly to store that ammunition in a locked compartment, although not strictly a breach of any provision of the Act or regulation, demonstrated the applicant’s lax attitude to possession of a regulated item.

52. In the further submissions filed on 2 July 2021, the respondent contended that the doctrine of issue estoppel could not apply in the present proceedings, citing my decision in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, [58], in which I said that the tribunal could accept evidence relating to the circumstances surrounding an offence in connexion with its evaluation of discretionary factors.

53. Notably, the question whether the applicant’s license should be revoked on the basis that he had contravened the Act was not determined by the Local Court, which was forming a view as to whether the applicant was guilty of an offence under the Act. The respondent maintained its position that the applicant had contravened s 39 and cl 149 in that he failed to take all reasonable precautions to ensure the safekeeping of his firearm and conveyed it in a manner that made it visible from outside the vehicle, arguing that Wilson LCM’s decision was incorrect.

54. Even if the tribunal accepted the Local Court’s application of those provisions, the applicant had clearly contravened cl 149, which was a sufficient basis for licence revocation under s 24(2)(b)(ii). That clause did not need to be read with s 39 for it to be a relevant provision for consideration under s 24(2)(b)(ii).

55. The respondent also maintained that the applicant had contravened s 7A, contradicting the applicant’s contention that the only reference to his being in breach of his genuine reason was a statement by his solicitor, which did not indicate whether the applicant had, or was about to, undertake that role. The applicant had, however, applied for a business firearms licence on 29 January 2020, attaching a letter from his tax agent confirming that he “operates a kangaroo harvesting enterprise and earns his income from a business of primary production” (exhibit R1, p 76).

56. In oral submissions at the hearing, Ms Norquay on behalf of the respondent reiterated those points, and added that from event report E 33529326 (exhibit R1, pp 19 – 20), describing an incident on 6 April 2008, it was apparent that the applicant had been engaged in contract shooting operations since at least that date. Event report E 37857270, dated 7 August 2009, tended to support that inference (exhibit R1, pp 23 – 24).

57. The evidence of Detective Greshner, supported by that of S/C Johnson-Burt and S/C Holyday, showed that the rifle was visible from outside the vehicle. The applicant had argued that S/C Holyday’s evidence merited little weight because a Facebook post showing him with Detective Greshner in an affectionate pose on a vacation trip to South Australia suggested the existence of a private relationship between the two officers that might explain the change of her evidence relating to the September 2019 incident, especially given that S/C Holyday did not provide a statement until two years afterwards. If the applicant intended to rely on that argument, he should have called Detective Greshner for cross-examination. Otherwise, there was no other evidence of any undue influence.

58. There was clear evidence that the rifle was visible on the dashboard from outside the vehicle, and there was a clear issue about the risk of theft, which involved a danger to public safety. The tribunal could find a breach of the Act on the civil standard. He had also never changed his reason for holding a licence, though he was obligated to notify the Firearms Registry under cl 16 within 14 days. He had been using his licence for an unauthorized purpose since 2008 at least.

59. Artridge v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 188, [72] had stated that a breach of s 7A is not trivial and strict compliance was needed. It was in the public interest for there to be strict compliance with regulatory requirements, especially on the part of a professional contract shooter. There was no evidence to support the proposition that the applicant had been working only as an “offsider” for others.

Consideration

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

61. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

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

63. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

64. The respondent advances three broad lines of argument as warranting licence revocation:

1. contravention of a provision of the Act or regulation (s 24(2)(b)(ii);

2. contravention of a condition of the licence (s 24(2)(b)(iii); and

3. public interest.

Contravention of a provision of the Act or regulation and breach of a licence condition

65. The respondent submits that the tribunal should exercise its discretion to revoke the applicant’s licence because he infringed ss 7A and 39 of the Act and cl 149 of the regulation. It is argued that s 39 (safe keeping requirements) and cl 149 (requirements for transportation of category A and B firearms) were violated on 26 September 2019 when the applicant was driving through Cobar. Police stopped his vehicle for the purpose of conducting a random breath test (RBT). While police were speaking with him they saw a firearm mounted inside the vehicle across the dashboard. When asked why it was not safely stored, the applicant said, “I just thought they weren’t allowed in view”. Police also saw a quantity of unsafely stored ammunition in the vehicle. The applicant’s firearm and ammunition were seized and he was charged with “Not keep firearm safely – not prohibited firearm”.

66. That charge was later withdrawn and replaced with two penalty infringement notices, one for “Not keep firearm safe” ($550) and the other for “Not prevent firearm from being lost or stolen” ($550) (exhibit R2, p 3). The applicant appealed to the Local Court against those notices, and on 29 March 2021, Wilson LCM found the applicant not guilty on both matters, stating in his conclusion that “I am satisfied that Mr Johnson had the firearm at that particular point in time in a position which was secure and safe for all purposes” (part exhibit A1).

67. In his reasons his Honour referred to the requirement in cl 149(c) relating to the transporting of a firearm in a vehicle and requiring that it must not be visible from the outside of the vehicle. “In this instance”, his Honour said, “and on the facts and on the photographs the firearm, particularly the telescopic sights, were clearly visible and came to the attention of police as Mr Johnson was driving through Cobar”. It does not appear that the court made a specific finding about a possible breach of cl 149(c), however.

68. The applicant contended that the tribunal was bound by the two acquittals relating to the infringement notices as the court’s decision gave rise to an issue estoppel. The respondent submitted that, on the contrary, the doctrine of issue estoppel did not apply in such proceedings, making reference to Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, 359, in which the Federal Court explained that issue estoppel does not apply in criminal proceedings, and the tribunal could examine the circumstances of a conviction as relevant to the gravity of the offence and the risk of recidivism. The doctrine of issue estoppel, the court continued, has no place in a partly lay tribunal directed to follow informal procedures. The respondents also referred to my decision in Green, in which Daniele was followed and where it was noted (at [58]) that the tribunal may accept evidence relating to the circumstances surrounding an offence in connexion with its evaluation of discretionary factors. I remain of that opinion.

69. Among the surrounding circumstances was the question of how the attending police became aware that the applicant’s vehicle had a rifle mounted on the dash. In her statement dated 21 April 2021 (exhibit R3) Detective Greshner stated that as she was driving east along Marshall Street, Cobar, she saw a white Land Cruiser travelling in the opposite direction. As her vehicle approached the Land Cruiser, she could see a firearm on the dashboard in clear view and observed that the driver’s side window was down. She turned her car around to conduct a vehicle stop. Detective Greshner’s statement of 28 July 2020 (part exhibit R3) gives a similar account, as did her evidence before Nyngan Local Court. S/C Holyday’s much later statement (exhibit R4) supports that account, recalling her telling him on the telephone that she “was driving along and saw this car with a gun on the dash”.

70. The applicant’s version is that police stopped his vehicle for an RBT and that the officer in question would never have seen the firearm if the vehicle had driven past on the road, as it only became visible when the window was wound down and the officer came within very close proximity of the open window while the vehicle was stationary. On the facts, the firearm was not visible from outside the vehicle in the normal course of operation, it was argued.

65. The respondent’s written submissions state that the applicant’s vehicle was stopped for the purpose of administering an RBT (exhibit R5, para 22), as did the respondent’s earlier written submissions filed on 14 July 2020 (para 21). In event report E 72169940 (exhibit R1, p 29), Detective Greshner herself wrote, a few hours after the incident had occurred, that the applicant’s vehicle had been stopped “for the purpose of a random breath test. Whilst Police spoke with the accused a firearm was seen in view on the dash mounted to a railing from the front pillars and across the dashboard which held the rifle”. The police fact sheet for the safe keeping charge was to the same effect (exhibit R1, p 34).

66. Recollections can become confused over time, so an account prepared immediately after the event is to be preferred to a later version. The applicant submitted that S/C Holyday’s supportive statement stemmed from a private relationship with Detective Greshner, and tendered a Facebook post showing a smiling couple with the note “Scott Holyday is with Christy Greshner in Adelaide, South Australia, 3 December 2019. She said yes!” (exhibit A2). As the respondent pointed out, however, if the applicant wished to advance that proposition he would have needed to call Detective Greshner for cross-examination. There was insufficient evidence to support an allegation of concoction.

67. In my view, therefore, the Local Court decision does not give rise to an issue estoppel, and the tribunal can consider the circumstances surrounding an offence (or in this case a charge leading to an acquittal). The tribunal is concerned with conduct, not only with the fact of conviction (or acquittal): Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. The tribunal is to take account of matters indicating criminal conduct even though the particular offences charged have not been proved or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] – [64].

68. In this case, therefore, the applicant was acquitted of both charges after a full trial by a court. The respondent could have appealed against that decision but did not. The applicant was thus not guilty of a safe keeping contravention, but was in breach of cl 149(c) in that his rifle was visible on the dashboard of his vehicle. That much appears from the photographs, and Wilson LCM found that “the firearm, particularly the telescopic sights, were clearly visible….”, though he made no specific finding in relation to cl 149(c). That contravention was of concern as it increased the risk of theft.

69. The respondent advanced two aggravating factors, one being that the applicant had been twice warned by police about transporting firearms that were visible from outside the vehicle. Those incidents took place over 12 years ago, however, and at a time when there were no regulations to an effect similar to cl 149(c). It was also argued that the rifle mounted on the dashboard was visible from a car travelling in the opposite direction, which was why police decided to stop the applicant’s vehicle. The evidence shows, however, that police conducted a traffic stop for the purpose of an RBT, not because they had seen the rifle as the applicant was driving past.

70. The other contravention put forward as justifying licence revocation arises from s 7A(2)(a), which creates an offence of using a firearm for a purpose other than that for which the licence was issued. During the 15 years in which he has held a firearms licence, the applicant has only ever held a licence on the ground of recreational hunting and vermin control. Nevertheless, he told Detective Greshner during the incident on 26 September 2019 that “his job [was] to cull vermin on properties” (exhibit R2, para 20). On 13 November 2019, his solicitor requested that his licence suspension be issued because he was “a professional shooter” and needed his firearms licence “asap, to allow him to resume working” (exhibit R1, p 51).

71. In support of his 29 January 2020 application (unsuccessful) for a new firearms licence as a professional shooter, his chartered accountants wrote to the respondent explaining that, “We confirm that Luke operates a kangaroo harvesting enterprise and earns his income from a business of primary production” (exhibit R1, p 76). Event report E 33529326 (exhibit R1, pp 19 – 20, 6 April 2008), which refers to his being issued with an infringement notice for not completing harvester identification tags, having been found (in the company of two other persons) at a kangaroo chiller with 175 kangaroo carcasses, suggests that he might have been working as a professional shooter since at least 2008. Mr Kable submitted that he might have been working purely as an “offsider”, but there is no evidence from the applicant to support that possibility.

72. The applicant could have applied to change his reason for holding a licence, and was required by cl 16 to notify the Commissioner within 14 days after any change in a particular occurred, but at no time did so, nor did he seek to have an additional reason included on his licence. He did apply unsuccessfully for a new licence as a professional shooter in 2020, but it is clear that he was working as a contract shooter for some considerable time before his licence was revoked, possibly as early as 2008 or even earlier. I find that he did infringe s 7A of the Firearms Act.

73. The applicant is a man aged 34 who has had no criminal convictions. He has no history of violence or of threatening behaviour and has no reports of the dangerous or irresponsible use of firearms in the 15 years he has held a licence, other than failing to keep his rifle out of sight in his vehicle. His safe storage arrangements have been found by police to satisfy statutory requirements on two occasions, on 3 January 2010 and 19 June 2011. He does have some traffic infringements, the most recent occurring on 4 March 2008, but says he has now learned some sense and his record has improved. He also says that he would never again transport a firearm in the manner observed on 26 September 2019.

74. The manner in which he was transporting rifle ammunition in his vehicle was open to criticism, but the respondent conceded that it did not contravene any provision of the legislation. No adverse character information has been put before the tribunal in relation to Mr Johnston. Although not trivial, I do not think in the circumstances that his contravention of cl 149(c) would in itself warrant licence revocation either under s 24(2)(b)(ii) for breach of cl 149, or s 24(2)(b)(iii) for breach of a licence condition, and I so find.

75. As to his contravention of s 7A, the respondent pointed out that in Artridge the tribunal had said that failing to notify the Commissioner of a change of use of firearms “is not a trivial matter. It is evident, and readily understandable, that the purpose of the legislation is not only to control who may use firearms, but also to limit the purposes for which they may be used”. As against that, Mr Kable noted that in that case, Ransome SM had stated that there was “no evidence that any member of the public [had] been put at risk through his use of the firearms for primary production or game harvesting” (at [72]) and set aside the revocation of the applicant’s licence.

76. I accept the applicant’s contention that his s 7A breach did not in itself present any significant risk to public safety. But the legislative scheme, although mainly concerned with public safety, also has other related objectives, including the establishment of a licensing system. The efficient operation of that scheme depends on the Firearms Registry being able to rely on the accuracy of information supplied by licensees and applicants. In this case the applicant appears to have been in breach of s 7A for a substantial period of time and on a commercial scale, his chartered accountants informing the respondent that he “operates a kangaroo harvesting enterprise”.

77. The public is entitled to expect that persons operating commercial shooting businesses can be depended upon to comply with the legislative scheme with particular care. The applicant has not done so and I believe his failure to meet the required standard in the circumstances justifies licence revocation, and I so find.

The public interest

84. The respondent also contends that licence revocation in this case is warranted because it is not in the public interest for the licensee to continue to hold a licence, within s 24(2)(d) and cl 20. In Constantin v Commissioner of Police [2013] NSWADT AP 16, [33] the Appeal Panel observed that “The ’public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system”.

85. As was noted above, it does not appear that the applicant’s s 7A breach created any significant risk to public safety. Further, the public interest is served when law-abiding persons are able to engage in gainful business or employment, in this case in the protection of agricultural and grazing industry from ferals and other vermin. But a breach of licensing requirements over a sustained period cannot be overlooked, especially in the case of a professional shooting entrepreneur. For that reason, on the evidence available to the tribunal at present, it is not at present in the public interest for the applicant to continue to hold a licence, and I so find.

Conclusion

86. I have thus concluded that the revocation of the applicant’s licence (which has now expired in any event) should be affirmed. That does not mean that he is disqualified from making a new application. He has been without his licence now for almost two years, and that must have helped to bring home to him the need for conscientious compliance with the legislative scheme. The Commissioner has not submitted that he is not a fit and proper person to hold a licence within s 11(3)(a). If any future application is to be successful, however, the applicant will need to satisfy the Commissioner (and potentially this tribunal) that he can be depended upon to comply with all the regulatory requirements of the licensing system.

Order

87. Decision under review 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: 11 August 2021