Keane v Commissioner of Police, NSW Police

[2008] NSWADT 68

CITATION:	Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68
DIVISION:	General Division
PARTIES:	APPLICANT Peter John Keane RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	073269
HEARING DATES:	22 February 2008
SUBMISSIONS CLOSED:	22 February 2008
DATE OF DECISION:	5 March 2008
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
CASES CITED:	Australian Broadcasting Commission v Bond (1990) 170 CLR 231 Bazouni and Ors v Commissioner of Police [2002] NSWADT 100 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
REPRESENTATION:	APPLICANT In person RESPONDENT S Sheather, solicitor
ORDERS:	The decision under review is set aside and a decision substituted that the Applicant, Mr Keane, be issued with a category ABD firearms licence.

REASONS FOR DECISION

1 On 12 September 2007, Peter Keane applied to the Tribunal for the review of a decision of the Commissioner of Police (‘the Commissioner’) made under the Firearms Act 1996 (‘the Act’) to refuse Mr Keane’s application for a category ABD firearms licence on the grounds that he is not a fit and proper person to hold such a licence and that to issue him with such a licence would not be in the public interest.

Background

2 Mr Keane was born on 10 October 1957 and is aged 50. He is married with four children: Natalie (20), Simone (18), Jack (17) and Max (15). Mr Keane is currently the licensee of the Australia Post office in Bourke.

3 Mr Keane has previously held various firearms licenses. His last (category AB) licence was suspended on 2 October 2002. On 9 January 2003, he applied for a category ABD licence. This was refused on the ground that he had been convicted of a prescribed offence involving a firearm within 10 years prior to the application being made (section 11(5)(b) of the Act). On 12 January 2004, Mr Keane lodged a further application for a category ABD licence. This was refused on 21 January 2004 on the ground that Mr Keane was subject to a good behaviour bond (section 11(5)(d)), a decision confirmed on an internal review.

4 On 3 April 2007, Mr Keane lodged his application for a category ABD licence in relation to the current matter. This was refused on 10 July 2007 on the ground that Mr Keane is not a fit and proper person to hold such a licence and that to issue him with such a licence would be contrary to the public interest. This decision was confirmed on 21 August 2007 after an internal review.

5 Mr Keane was convicted of a number of minor criminal offences between 1971 and 1984. There are four further incidents which have been raised by the Commissioner in the current proceedings:

(1) On 29 November 2001, Mr Keane was charged with (on 3 December 1999) (i) failure to notify police of the sale/loss/theft of a firearm, and (ii) not keeping a firearm safely. These charges were subsequently withdrawn.

(2) On 27 May 2001, he was charged with (on 25 May 2001) (i) firing a firearm in or near a public place, (ii) common assault, and (iii) firing a firearm in a manner likely to injure persons or property. All charges were dismissed, with no evidence being offered on the first charge.

(3) On 23 November 2002, he was charged with (on 29 September 2002) (i) possessing a loaded firearm in a public place, and (ii) not keeping a firearm safely. The second charge was subsequently withdrawn and, on 8 May 2003, in Bourke Local Court, Mr Keane was convicted of the first charge and fined $2,000 with costs. He appealed against the severity of this sentence and, on 8 December 2003, in Dubbo District Court, he was found guilty of the offence but discharged without conviction on a good behaviour bond for two years, pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.

(4) On 18 October 2005, Mr Keane was charged with (on 18 October 2005) assaulting a school student while attending school. This charge was dismissed in Bourke Local Court on 24 November 2006.

Relevant legislation

6 Section 11 of the Act sets out general restrictions on the issue of firearms licenses. The relevant provisions are subsections 3(a), 5(b) and (d), and (7), as follows:

“(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 ...
(5) A licence must not be issued to a person who:
(b) has, within the period of 10 years before the application was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or ...

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or ...

(7) Despite other provisions in 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.”
Mr Keane’s evidence and submissions

7 Mr Keane said he was one of a family of six children. From the age of five to 12, he spent a lot of time on a farm near Bendigo where he learned to use a gun. One day, when he was messing around trying to open a bullet, there was an explosion and he was blinded in the right eye. Mr Keane left school at 14. He worked in a pottery for 4 years and then bought a Landrover, which he used to travel around the country, working in different areas, and returning to Bendigo from time to time.

8 In about 1978, Mr Keane returned to Bendigo for Christmas. He got a job in a biscuit factory and then went into beehives for about three years, looking after the bees in the summer months and shooting in the winter. Mr Keane said his father was a shearer. He was a good family man, but he was firm and believed in discipline. He was also a heavy drinker and a gambler. When Mr Keane was aged about 20, he found his father drowned in a swimming pool and called the emergency services. After the inquest, Mr Keane “took off for the Northern Territory” to be by himself and sort himself out. It was while there that he was arrested by the police and charged with various offences which, on conviction, led to him serving about 12 months imprisonment.

9 Mr Keane said that he and his wife were married in 1987 in Bendigo. They then returned to the Northern Territory where Mr Keane managed a wild pig shooting and carcass collection operation for Wild Game Resources Pty Ltd. Later in 1987, their first daughter Natalie was born and, in 1989, Simone. Mr Keane wanted to be a good family man, and when he was offered a job managing a wild game meatworks and kangaroo and wild pig carcass procurement business based in Brewarinna, he accepted this. The business was the largest employer in Brewarinna and involved managing both the meatworks and the shooters bringing in carcasses. There were a lot of racial problems among the employees, who included Aboriginals. Mr Keane said he had a good rapport with his workers and, although he was “dealing with blokes with knives and firearms”, he managed the business for a period of 10 years without incident.

10 Mr Keane said it was at this time that he first met Senior Constable (‘Sen Const’) Matthew Cribb when Sen Const Cribb sought a letter of support from him, as manager of the meatworks business, for the issue of a firearms licence for the purpose of shooting game. Mr Keane did not provide Sen Const Cribb with a letter because Mr Keane was not then issuing letters of support since the business did not need any more shooters – they already had more than they could handle.

11 Mr Keane said that in 1999, he tendered for the licence for the Australia Post office in Bourke because he wanted to send his children to better schools. After winning the tender, he commuted from Brewarinna for a while, but then he and his family moved to Bourke.

12 The first of the four incidents raised by the Commissioner in these proceedings concerned a break in at Mr Keane’s house in Brewarinna on 3 December 1999, shortly before he moved to Bourke. Mr Keane said he had been out shooting the night before and had left his bolt action rifle in a secured room when he went to work, having treated the rifle with a cleaning agent. He had, however, removed the bolt, which he had locked in his gun safe. Without the bolt, the rifle could not be fired.

13 Mr Keane said the thieves had to break through four locked doors to steal his rifle. They used an angle grinder, which was in his shed, to cut through the locks on two security doors. They also ransacked the top of the house taking “CDs, jewellery and other bits and pieces”. Mr Keane thought they were probably 12 year old boys. Because he had good contacts and a good relationship with people in the local community, he was convinced he would be able to get his gun back. Two police officers came to the house in response to the break in – Sen Const Cribb, in plain clothes, and another officer, whose name Mr Keane was unable to remember, who was in uniform.

14 While Sen Const Cribb was upstairs in the house, Mr Keane, who was downstairs, told the other officer that his rifle was missing, although he thought he would be able to find out who had taken it and get it back. The other officer said he would leave the fact of the missing gun alone for the moment. Mr Keane asked two of his employees in Brewarinna (Les and Don) to ask around as to the whereabouts of the rifle, but he heard nothing from them. Soon after, Mr Keane moved to Bourke, was distracted by other problems, and did nothing more about the missing rifle. The rifle was not functional without the bolt – it could not be fired - and it was rumoured that it had been thrown in the river.

15 Mr Keane said he had nothing to hide, but agreed that he should have followed up on the theft of the rifle. In cross-examination, he acknowledged that it might have been possible to obtain another bolt for the rifle. Mr Keane said that he attended Brewarinna police station about a week after the break in, but did not mention that the rifle had been stolen to Sen Const Cribb. Mr Keane denied that Sen Const Cribb asked him for a detailed list of property stolen.

16 Mr Keane said that the police had subsequently located the rifle [on 3 February 2000, according to Sen Const Cribb’s statement dated 28 November 2007] when executing a search warrant at an address in Barwon Four Reserve [described by Sen Const Cribb in his statement as an Aboriginal mission] in Brewarinna. Mr Keane expressed surprise that the police did not inform him that they had found the rifle for another 18 months. [A Computerised Operational Policing System (‘COPS’) entry by Sergeant (‘Sgt’) Lionel White, stationed at Brewarinna, on 22 August 2001, records that Sgt White informed Mr Keane that his rifle had been recovered in executing a search warrant on 29 January 2001.] Mr Keane said when Sgt White informed him that police had his rifle, he was unable to collect it because his licence had been cancelled by that time.

17 Mr Keane said when Sen Const Cribb spoke to him about the rifle [which according to Sen Const Cribb was on 29 November 2001], Mr Keane was suspicious about Sen Const Cribb’s motives because he was a friend of Matthew Andrews, a complainant in the second incident raised by the Commissioner in these proceedings, referred to below. Mr Keane said there had also been some ill feeling with police in Bourke because when he took over the Australia Post office there, he stopped the practice used by the police (and other government agencies) of using business mailboxes for private mail.

18 The second of the four incidents raised by the Commissioner in these proceedings concerns an incident on 27 May 2001. The COPS entry, by Senior Constable Nicole Sutton at Brewarinna, based on a complaint by Matthew Andrews, alleges that Mr Keane threatened Mr Andrews, who was out kangaroo shooting with his girlfriend Cherie Brown and assistant Steven Dowell, with his rifle, fired two shots in the air, and then fired four shots towards Mr Andrews’ vehicle, the last of which hit the vehicle’s rear offside tyre blowing it out.

19 Mr Keane said the Andrews brothers had been shooting in country where he had the shooting rights, showing no respect for other people’s property. They set up a meat chiller in opposition to the business at Brewarinna that he managed. Mr Keane said he did not use his rifle as alleged, and did not point the gun at Mr Andrews, although he did tell them off. He explained to the Court that he had had a lot of problems with the Andrews brothers over the 10 years he worked there. During the hearing, the police relied on Mr Andrews’ evidence that Mr Keane used his right arm to fire the gun when firing at Mr Andrews’ vehicle. However, Mr Keane is left-handed and the Magistrate did not accept Mr Andrews’ story and dismissed the charges against Mr Keane.

20 The third of the four incidents raised by the Commissioner in these proceedings concerns an accident on 30 September 2002 when Mr Keane’s friend’s son received a gunshot wound to the left buttock, thigh, scrotum and testicles. Mr Keane said friends came to visit him in Bourke and he took the father, Peter Chivers, and son Christopher Chivers, then aged 11, out with him to teach them about guns. Mr Keane took targets to shoot at with him in the back of the utility (‘ute’), although he also stopped to shoot crows on the way home. At that time, crows picking out the eyes of young lambs was a significant problem. Mr Keane also took his sons Jack, then aged 12, and Max, then aged 10, with him. They travelled in Mr Keane’s twin cab ute, with Mr Keane, Peter Chivers and Max sitting in the front, with Max in the middle, and Jack and Christopher Chivers sitting in the back.

21 Mr Keane said he has great respect for the safety of guns and is always very careful. On the way back to Bourke after Mr Keane had previously unloaded the guns used, he asked everyone to double check that there were no bullets in any of the weapons. There were two rifles on the front floor of the vehicle and one mounted on the front dash. There was also a semi-automatic rifle, a Ruger, mounted on a rack to the rear of the front seats and behind the driver’s head. Mr Keane said he should never have taken the Ruger with him. He only used this for aerial shooting, but Mr Chivers had expressed an interest and Mr Keane took it with him to show him how it was used. The magazines and bullets for the weapons were placed in a tub, which was beneath another tub in the foot well of the ute in the rear, near where Jack was sitting. These light tubs are of the kind used in the Post Office.

22 Mr Keane said because the Ruger is a semi-automatic rifle, there is no bolt to remove, and he did not have a trigger lock for it nor was it locked in the gun rack. He thinks what happened is that on the way home, without Mr Keane knowing, Jack put three bullets in the magazine and then put the magazine in the Ruger. Then when they got back to the rear of the Post Office in Bourke where Mr Keane and his family live, and without Mr Keane asking him to, Jack lifted the Ruger off the rack in the back to hand it down, and in doing so he must have touched the trigger. Christopher was getting out of the back of the ute and the Ruger fired a bullet which went through the side of the car seat at an angle, hitting Christopher in the buttock, thigh, scrotum and testicles. Mr Keane was still in the front of the ute at the time.

23 In cross-examination, Mr Keane said that while they were out in the field shooting, he gave 100 percent to maintaining safety. He denied that he transported the firearms in an unprofessional manner. Mr Keane acknowledged that he was the only person there with a licence to use firearms. He thought it was OK for a young person to use a gun under close supervision, and he always spends time teaching young people to appreciate the dangers of firearms. Mr Keane said he believes he took all proper safety precautions, as Mr Chivers acknowledged in his statement, but Mr Keane pleaded guilty to the charge to avoid Jack and Christopher having to go through further questioning.

24 Mr Keane said he accepts responsibility for his actions and has spent a lot of time expressing remorse about the accident. He was very upset at Christopher’s injuries and he was also worried about Jack, who was very traumatised by what happened and whom Mr Keane wanted to help though the aftermath. Mr Keane said that, at the request of police, he re-enacted what had happened in his backyard at the Post Office that same day, and next day he took Jack to the police station for further questioning. Mr Keane got upset when police asked him to leave the room where Jack was being questioned, and he left without making a statement.

25 Mr Keane said he had not realised the seriousness of his pleading guilty to the charge. He appealed against the severity of the fine imposed by Bourke Local Court and the District Court discharged him without conviction and imposed a good behaviour bond for two years. Mr Keane said now that the two year period has passed, he is trying to regain his licence so that he can resume game shooting, which used to earn him significant additional income of up to $1,000 per night. After buying the Post Office, Mr Keane discovered a lot of undisclosed costs associated with running the business, which led to a dispute with Australia Post. This was only resolved in 2002, after arbitration, with Australia Post agreeing to pay him $100,000 plus additional income of $30,000 per annum.

26 Mr Keane said he borrowed a significant sum to buy the Post Office and he needed his income from game shooting to help support the loan. Mr Keane said he and his wife ran out of money last year and he took a 12 month job to manage a game meat processing factory in Walgett in order to earn additional income to send Max, who is now aged 15, to boarding school at Campbelltown. The job was similar to that which he had managed in Brewarinna, but with forty employees plus shooters. The job finished in November 2007.

27 The last of the four incidents raised by the Commissioner in these proceedings concerns an incident on 18 October 2005 involving his daughter Simone, who was just 16 at the time. Mr Keane said he was brought up with and believes in maintaining discipline with his children. On the previous evening, Simone wanted to go out. It was the evening before the start of school next day and Mr Keane refused her permission. Simone was a very stubborn girl and had already been in trouble at school and had been expelled from St Ursula’s boarding school in Toowoomba. He and his wife went out to a Rotary meeting and, when they returned home, Simone had gone out. Mr Keane spent half the night looking for her and his wife was very worried. Next day, Mr Keane went to her school to speak to her and to tell her to stop this behaviour. She was very abusive and Mr Keane held her by the shoulders and shook her. He denied grabbing her hair or slapping her.

28 Some of Simone’s fellow students and teachers at the school gave statements, and Mr Keane said he went to the police station to give a statement. The police issued him with a domestic violence order, which was very difficult with his daughter living in the same house. Mr Keane took himself off for the night and stayed in the caravan park in the town in the hope that Simone, and Nicole, who had also taken off, would come home. But his wife was very worried and he returned home next day. When the case came to court, the charge was dismissed.

29 Mr Keane submitted that contrary to police assertions, he is not unfit or unstable. The police are seeking to rely on incidents in respect of which the courts dismissed the charges against him. He believes he is a fit and proper person who is fully aware of the importance of ensuring the safety and security of firearms. He has provided references to support his application and to attest to his being a responsible, well thought of member of the community.

Senior Constable Cribb’s evidence

30 Sen Const Matthew Cribb provided a statement dated 28 November 2007 and gave oral evidence by phone. Sen Const Cribb said the record of interview conducted by Detective Kelly with Mr Keane concerning the theft of his rifle in December 1999, to which Mr Keane has referred, is not available, and Detective Kelly has left the Police.

31 Sen Const Cribb said he recalled going to Mr Keane’s house after the break in. He said the security arrangements for the room where the firearms were kept were quite adequate and Mr Keane had an approved gun safe. Sen Const Cribb said he was not involved in executing the search warrant, which led to the rifle being located, and he never saw the rifle.

32 Sen Const Cribb did not recall Mr Keane refusing him a letter of support for his application for a licence for shooting game. He said he had never had any problems in his dealings with Mr Keane and, indeed, had sold game he had shot with his game shooting licence through the business managed by Mr Keane. He is certainly not aware of any vendetta against Mr Keane, as Mr Keane had suggested.

33 In his written statement, Sen Const Cribb said that en route to Mr Keane’s house after the break in on 3 December 1999, he spoke to Mr Keane and three young persons in a paddock to the rear of Mr Keane’s house. Mr Keane said he had seen the three youths coming from near his house. Sen Const Cribb searched the youths and found nothing to link them with the break in. Sen Const Cribb said that after visiting Mr Keane’s house, he made a number of attempts to get Mr Keane to supply a list of items stolen but he was uncooperative. Mr Keane made no mention of a firearm being stolen in a statement he supplied on 8 December 1999.

34 Sen Const Cribb said that he although he was not involved in executing the search warrant on a house in Barwon Four Reserve, where the rifle was located, the area was known as one which was at times very hostile to police and where there were often incidents involving violence and serious injuries, and where a large volume of alcohol was consumed. The house where the rifle was located was accessible to a number of persons and there was every likelihood that it could have been used to commit serious crime if it had not been recovered.

35 Sen Const Cribb stated his opinion that Mr Keane deliberately withheld reporting the firearm because, if he was convicted of an offence, his licence would be suspended and his ability to earn an income from kangaroo shooting would cease. He stated that he did not believe it was in the public interest for Mr Keane to hold a firearms licence.

The Commissioner’s evidence and submissions

36 Mr Sheather, for the Commissioner, relied on the statement of reasons provided to Mr Keane explaining the internal review decision dated 21 August 2007, together with the evidence of Sen Const Cribb and also of Sen Const Gail Symington. Sen Const Symington provided a statement dated 24 January 2008 but was not available to give oral evidence. She stated that she had attended Bourke High School on 18 October 2005 to investigate an alleged assault by Mr Keane on his daughter Simone. She interviewed Simone in the presence of her mother, Mrs Keane, and the Principal of the High School. Simone said, “Dad grabbed me by the hair and slapped me twice about the face, but I don’t want to make a statement about what happened.” Sen Const Symington said whilst she was in attendance, she could not see any visible injuries on Simone. Sen Const Symington also interviewed two witnesses to the incident – a teacher and a student.

37 Sen Const Symington said as a result of her investigation, Mr Keane was arrested and charged with assault on a school student. He made no admissions and refused to be interviewed about the matter. The matter went to a full hearing on 24 November 2006 with all the witnesses to the incident attending court. The Magistrate dismissed the charge, deciding that there was reasonable doubt. Sen Const Symington was not present at the hearing and does not know exactly what the Magistrate said in dismissing the charge. However, she stated her opinion that Mr Keane had refused to accept responsibility and acknowledge that what he did was wrong or inappropriate. It is her opinion that it is not in the public interest for Mr Keane to hold a firearms licence.

38 Mr Sheather submitted that despite Mr Keane’s evidence, the Tribunal could not go behind Mr Keane’s conviction in relation to the incident on 29 September 2002. In the statement of reasons for the internal review decision, the delegate of the Commissioner said that Mr Keane’s conduct in relation to the incident on that day, involving Mr Keane transporting firearms “in an unprofessional manner, with some still loaded”, posed a substantial risk to those present, as subsequent events confirmed. Mr Keane’s conduct indicated that he did not appreciate the need to adhere to safe practices. Moreover, Mr Keane’s instructing his son Jack to unload the Ruger rifle “whilst on the road” was a fundamental breach of the Act, and in complete disregard of the conditions on which Mr Keane’s firearms licence was issued. The delegate said Mr Keane’s actions caused significant danger and trauma to members of the public and calls into question Mr Keane’s fitness and suitability to hold such a licence. Mr Keane “committed a fundamental contravention of the Act which goes to the heart of the public’s interest and concern for safety”.

39 The delegate also noted Mr Keane had displayed a poor attitude and insisted that no statement be taken from a witness [presumably his son Jack] unless he was present. The delegate considered this did not demonstrate the responsible attitude the public has a right to expect of the holder of a firearms licence.

40 The delegate noted this incident was not an isolated occurrence of misuse of firearms. Mr Keane had a lengthy history of disregard for the law including interstate convictions for firearms offences in the 1980s. Moreover, allegations concerning an incident on 27 May 2001 “raise substantial concerns regarding public safety and your fitness to hold a firearms licence”. While acknowledging that the resulting charges were dismissed, the delegate said:

“However, it is my opinion that your history of firearms offences in New South Wales and interstate increases the probability that this incident may have occurred as reported to Police. Therefore, in the public interest I hold serious concerns regarding your fitness to hold a firearms licence.”
41 The delegate also referred to Mr Keane’s failure to report the theft of a firearm, thereby allowing criminals to retain it illegally, and placing the police and public at serious risk. The delegate noted a lack of evidence that Mr Keane accepts responsibility for his actions, and no indication of remorse.

42 The delegate gave little weight to a reference from VW Bates, Managing Director of Vacek Distributors Pty Ltd, dated 3 March 2003, because this made no mention of the allegations made against Mr Keane concerning the misuse of firearms. Further, the fact that Mr Keane might be financially disadvantaged by the refusal of a licence does not outweigh the public interest. In conclusion, the delegate was not satisfied that Mr Keane is a fit and proper person to hold a licence and said, “I believe there is a strong possibility that your future possession and use of firearms may place the public at risk and it is therefore not in the public interest for you to hold a licence.”

Discussion

43 There are two issues for me to determine in this case: first, whether Mr Keane “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(3)(a)), and second, whether the issue of a licence to Mr Keane “would be contrary to the public interest” (section 11(7)).

44 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 (‘Ward’), at paragraph 27 to paragraph 28, Deputy President Hennessy said that in terms of public safety:

“27. ... 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.”

45 With regard to police records concerning Mr Keane, I note the Tribunal decision in Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55, at par 20, where the Appeal Panel observed that, “[i]t is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven.” In Bazouni and Ors v Commissioner of Police [2002] NSWADT 100, at paragraph 21, the Tribunal said:
“A conviction in itself will not ordinarily be enough for the Tribunal to make an adverse finding on fitness and propriety ... It is the person’s conduct, not the fact of a conviction, which is to be considered.”
46 In my view, I am entitled to take into account Mr Keane’s police record in considering his conduct for the purposes of determining whether a refusal of his application for a licence was the correct and preferable decision. However, in doing so, I must have close regard to the evidence.

47 I was impressed by the oral evidence given by Mr Keane at the hearing and found him to be a credible witness. Having regard to his background and early police record, the impression I formed was that in his teenage years he got into trouble with police because he was ‘a bit of a tear away’. Given the time that has elapsed since those early years, and given Mr Keane’s account of his life since he was married in 1987, in my view I should give very little weight to that early police record for the years 1971 to 1984. The focus should be on the four incidents raised by the Commissioner in these proceedings.

48 The first incident is that involving the theft of Mr Keane’s rifle on 3 December 1999. The police evidence of this incident is less than satisfactory, there being no record of the second police officer who attended the scene of the break in at Mr Keane’s house, and there being no record of an interview with Mr Keane said to have been conducted by a Detective Kelly. The charges laid against Mr Keane on 29 November 2001, almost two years after the incident, were later withdrawn. Sen Const Cribb has given evidence of his attending the break in, but he could not identify the second officer with whom he attended Mr Keane’s house, he had no involvement in the recovery of the rifle on 29 January 2001, and appears to be unaware of Mr Keane’s evidence that the bolt had been removed from the rifle. In the absence of any contradictory evidence, I accept Mr Keane’s account as a plausible one, noting his acknowledgment that he should have followed up on the theft but was distracted by his moving from Brewarinna to Bourke.

49 The second incident is that on 25 May 2001, involving the allegation that Mr Keane threatened Mr Andrews and his companions and fired at their vehicle. I note Mr Keane’s evidence as to what occurred and why the charges heard in Bourke Local Court were dismissed. Again, Mr Keane’s account is a plausible one, and it would appear that his account was accepted by the Court, with the result that the charges were dismissed.

50 The third incident is that on 29 September 2002, involving the accidental shooting of Christopher Chivers. Mr Keane’s evidence, set out above, is that without his knowledge, his son Jack inserted bullets in a magazine in an unloaded rifle when it was in a gun rack to the rear of the front seat in Mr Keane’s twin cab ute, and accidentally touched the trigger while handing the rifle down from the rack. However, Mr Keane pleaded guilty to the charge of possessing a loaded firearm in a public place in respect of this incident. I note that contrary to the delegate’s statement of reasons, there was only one firearm involved. I am also satisfied on the basis of Mr Keane’s evidence, contrary to the delegate’s finding that Mr Keane has shown genuine remorse for the accident, and did cooperate with police investigating the circumstances of the accidental shooting. I accept his evidence about his trying to protect Jack and be present when Jack was interviewed in relation to the incident. To me, this rings true as a normal parental reaction in such circumstances.

51 I am bound to accept the outcome determined by the Court and the material facts that lead the Court to make its determination. However, I note the District Court reduced the sentence on appeal and recorded a finding of guilt without proceeding to a conviction, while placing Mr Keane on a two year good behaviour bond. I note Mr Keane’s acknowledgment that he should not have taken his Ruger semi-automatic rifle with him on that occasion. Nevertheless, I am satisfied from Mr Keane’s evidence that he does treat firearm safety and security as important matters. For a person who lost an eye as child while messing around with a bullet, such concerns are likely to be significant.

52 The fourth incident is that on 18 October 2005, involving an allegation that Mr Keane assaulted his daughter at her school, following her going out the previous night when told not to and failing to return home. Mr Keane was charged in respect of this assault and the matter was tried in Bourke Local Court with, according to Sen Const Symington, all witnesses attending. The Court dismissed the charge. In my view, in the absence of evidence as to the Court’s reasons for this dismissal, I should accept Mr Keane’s account, which, essentially, is that of a family dispute involving his trying to control the behaviour of a difficult teenager.

53 I note the references that Mr Keane has provided attesting to his good character. These include a character reference from a retired Psychiatrist, Dr John Wilson, dated 4 November 2007, who records the remorse Mr Keane expressed to him about the accident on 29 September 2002. Mr Keane has also provided the second page of a police statement from Peter Chivers, whose son was injured in the accident, stating that Mr Keane “appeared diligent in his safety precautions and directions”.

54 Mr Keane has provided a further letter dated 25 October 2007 from VW Bates, the Managing Director of Vacik Distributors (to whose opinion the delegate attached little weight), standing by his comments in a reference for Mr Keane dated 3 March 2003 and confirming that the reference was given in the full knowledge of the incidents involving Mr Keane and the allegations of his misusing firearms or contravening the firearms legislation. In his reference dated 3 March 2003, Mr Bates, who had then known Mr Keane for a period of 16 years, including employing him as manager of his company’s Brewarinna processing factory, said, “I have absolutely no hesitation in stating that Peter Keane is a most experienced, professional and reliable person with firearms.”

55 The other references provided by Mr Keane attest to his being well thought of in the local community in Brewarinna and Bourke, to his being a ‘good family man’, and to his being honest, reliable and trustworthy and with a strong sense of social justice in the wider community.

56 Turning to section 11(3)(a) of the Act, the meaning of the expression ‘fit and proper person’ was discussed by the High Court in Australian Broadcasting Commission v Bond (1990) 170 CLR 231. Toohey and Gaudron JJ said at paragraph 36 of their judgment:

“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.”
57 In terms of section 11(3)(a) of the Act, as noted above, Deputy President Hennessy said in Ward , at paragraph 27, that “[t]he 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”. On the basis of the evidence before me, I am satisfied that there is virtually no risk to public safety from Mr Keane being granted a firearms licence. I am not satisfied that he has shown a disregard for the firearms legislation or been uncooperative with the police, and I am satisfied that he has shown genuine remorse for the accident in which his friend’s son was injured. I am satisfied that Mr Keane is a fit and proper person to have possession of firearms without danger to public safety or to the peace.

58 With regard to section 11(7) of the Act, 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 appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”. As I have stated, in my view, there is virtually no risk to public safety or the public interest from Mr Keane being granted a firearms licence. Thus, the issue of a firearms licence to Mr Keane would not be contrary to the public interest.

Order

The correct and preferable decision is that Mr Keane should be issued with the category ABD firearms licence for which he has applied. Thus, the decision under review must be set aside and a decision substituted that Mr Keane be issued with such a licence.