Laughton v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 2

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Laughton v Commissioner of Police, NSW Police Force [2023] NSWCATAD 2

Hearing dates:

12 July 2022

Date of orders:

09 January 2023

Decision date:

09 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act (NSW) 2013

Firearms Act 1996 (NSW)

Firearms Regulation 2017

Cases Cited:

Busuttil v Commissioner of Police [2013] NSWADT 305

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

CSC v Commissioner of Police [2016] NSWCATAD 211

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315

Laughton v Commissioner of Police, NSW Police Force [2020] NSWCATAD 240

Livadaru v Commissioner of Police [2008] NSWADT 160

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

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Weckert v Commissioner of Police, NSW Police Force [2010] NSWADT 197

Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75

Category:

Principal judgment

Parties:

Donald Laughton (Applicant)
Commissioner of Police (Respondent)

Representation:

Mainstone Lawyers (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s):

2022/00070530

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (NSW) 2013, the publication of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Statement and (c) matters contained in the Confidential Documents and the Confidential Statement is prohibited.

Judgment

REASONS FOR DECISION

1. The applicant, Mr Laughton seeks review of the Commissioner of Police’s (“the Commissioner”) decision made on 17 November 2020 under the Firearms Act 1996, to revoke his category ABH gun licence. The decision was internally reviewed and affirmed by the respondent on 17 February 2022. The respondent has applied for external review of that decision by the Tribunal.

Introduction

2. The applicant, who at the time of the hearing was 49 years of age. The Commissioner’s delegate formed the view that the applicant is not a fit and proper person to hold a AB firearms licence (the “Licence”) and that it was not in the public interest for the applicant to continue to do so. The Commissioner decided to revoke the Licence. That decision was based on events involving the applicant where he was deceptive with police officers during an inspection visit on 13 February 2020. He failed to store ammunition is the ammunition safe. His partner admitted to having access to firearms and keys to firearms and ammunition safes in the applicant’s house, and the applicant failed to dispose of, or undertake “relevant necessary enquiries”, in respect of a powerhead in his possession, which was stored in the ammunition safe.

Background

3. On 22 December 1998, the applicant was issued the Licence. The Licence had been reissued on 5 February 2019 as well and an H category licence. The Licence was suspended on 13 February 2020 and revoked on 17 November 2020.

4. The applicant is employed as a road worker, driving trucks and heavy machinery. He resides with his long term de facto partner and assists caring for her 22 year old son who is autistic. The applicant also works on a voluntary basis with the NSW Rural Fire Service and the Great Lakes Wild Dog Control Group.

5. Immediately prior to 13 February 2020 (‘the inspection event’), police had been aware of a number of break and enters targeting firearms within the area in which the applicant resides. On that date Senior Constable Linda Hedley and Detective Senior Constable Lachlan Tancred attended the applicant’s residence at about 11.00 a.m. to inspect his firearms. Police were aware that the applicant had a large volume of firearms registered at his premises and due to the recent break and enters decided to inspect those premises.

6. When the officers arrived at the applicant’s residence, he appeared reluctant to admit the officers, including by stating that he had only had a firearms inspection six months prior and that an appointment should have been arranged. At the time of arrival on the property the officers saw a person, now known as Ms Fleming, the applicant’s de facto, dressed in a gown, observing the scene from a balcony of the applicant’s residence.

7. The officers were admitted into the applicant’s residence. Initially they were not allowed entry to his bedroom where the ammunition and firearms safes were located. The reason for this given by the applicant was that Ms Fleming was getting dressed. The officers observed Ms Fleming emerge from another section of the applicant’s house and then directed the applicant to open the door to the bedroom.

8. On entering the bedroom the officers observed the room to be cluttered with household items, as well as loose ammunition. One of the dedicated four firearms safes was already open. In attempting to open the two remaining three safes (one pistol safe and two longarm safes), the officers observed the applicant having trouble to locate the keys for the fourth safe, a dedicated ammunition safe. The applicant asked Ms Fleming to assist in searching for the key.

9. In conducting the inspection the officers observed two unlocked containers on the floor, each storing large quantities of ammunition. The applicant is alleged to have told the officers that one of the boxes was usually stored in the ammunition safe but did not account for the other. Ms Fleming located the key to the ammunition safe and after it being opened and the applicant moving around a number of boxes to demonstrate the natural position for one of the unlocked tin containers in the room, the applicant was unsuccessful in finding space in the ammunition safe for the other unlocked tin container. Senior Constable Hedley formed the view that there was no space for that ammunition in the ammunition safe and it was not normally kept there.

10. Throughout the inspection, the applicant maintained his firearms and ammunition were always secured. Ms Fleming said to officers word to the effect ‘When he goes away for work, I keep the keys and hide them in the house.’

11. Ms Fleming is not authorised to possess any of the applicant’s firearms. By the applicant providing her with access to the firearms in the officers’ view constitutes a breach of s 39(1)(c) of the Firearms Act.

12. Police officers also observed ammunition on a shelf above the ammunition safe contained in a beige container. There was also ammunition either in original packaging, resealable bags or loosely scattered on the shelf. The applicant is alleged to have told the officers that his family have access to the firearms stored at his property, including his brother, upon questioning as to the reason the ammunition in the beige container was not secured in the ammunition safe. In relation to the other ammunition, the applicant said that it had only been there for about a week for use on wild dogs.

13. In light of these explanations, the officers issued the applicant with a court attendance notice for the charge of ‘hold of category A or B licence not have approved storage’ in contravention of s 40 of the Firearms Act (offence 1). The officers also issued the applicant with a notice of suspension of his firearms licence and confiscated his firearms licence.

14. In the course of seizure of the applicant’s firearm holdings the officers identified a ‘powerhead’ was stored with some of the ammunition. This type of firearm is prohibited without a licence (and was unregistered in any event). The applicant told officers he came into possession of the powerhead via deceased estate and was unaware he could not hold it. The applicant was charged with ‘possess unauthorised prohibited firearm’ in contravention of s 7(1) of the Firearms Act (offence 2). Given the powerhead was co-located with ammunition, a further breach of the Firearms Act was detected, s 40(1)(d) to store ammunition separately for a firearm. A further firearm had a laser pointer attached to it, following its seizure, it was identified as a prohibited weapon in the possession of the applicant. Under s 4(a) of Schedule 1 of the Weapons Prohibited Act 1998 (NSW), another breach of the Firearms Act was detected.

15. A delegate for the Commissioner revoked the applicant’s category ABH firearms licence on 17 November 2020. The primary reason for this being the applicant’s guilty pleas on 8 July 2020 of the offences of failing to have an approved storage of a firearm and ammunition and possession of an unauthorised firearm (offence 1 and offence 2). The applicant was not convicted and received a conditional release order of 3 months for these offences.

16. On request for an internal review by the applicant, a Delegate of the Commissioner on 17 February 2020 affirmed the previous decision. The Delegate considered that the applicant was not a fit and proper person to hold a firearms licence (s 24(2)(c) of the Firearms Act); and it is not in the public interest (including according to public safety considerations) for the applicant to continue to hold a firearms licence (s 24(2)(d) of the Firearms Act).

17. The Commissioner also relies upon information contained in the confidential documents which formed part of the material before the Tribunal pursuant to a decision in Laughton v Commissioner of Police, NSW Police Force [2020] NSWCATAD 240.

18. The Commissioner contends that the decision to revoke the applicant’s Licence is the correct and preferable decision. I agree. These are my reasons.

Jurisdiction

19. The Notice of Revocation was issued under the provisions of the Firearms Act 1996 - s 24. Relevantly, s 24 provides:

24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1)   A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a)   the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor Licence authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor Licence is revoked under that Act or the licensee contravenes any condition of the firearms licence under this 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.

….

(Emphasis added)

20. Clause 20 of the Firearms Regulation 2017 provides:

20 Revocation of licence—licence not in the public interest

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.

21. A Licence is subject to the following conditions, pursuant to s 19 of the Firearms Act:

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions--

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

(b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm,

(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession,

(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,

(e) the licence cannot be transferred to another person.

(3) A licence is subject to such other conditions as may be prescribed by the regulations.

(Emphasis added)

22. Clause 18 of Schedule 1 to the Firearms Act provides:

18

Any device known as a "powerhead" that can be attached to the end of a spear gun and that is designed to propel a projectile by means of an explosive.

23. Section 7 of the Firearms Act, provides that it is an offence for a person to hold a prohibited firearm without a licence or permit:

(1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.

: Maximum penalty--imprisonment for 14 years.

Note : Reference to a pistol includes a prohibited pistol.

(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person--

(a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or

(b) contravenes any condition of the licence.

(3) If, on the trial for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 7A, it may find the person not guilty of the offence but guilty of an offence under section 7A, and the accused is liable to punishment accordingly.

24. Section 39 of the Firearms act deals with safe storage requires, s 39 provides:

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.

25. The specific requirements for a Category AB Licence are set out in s 40, which provides:

Category A and category B licence requirements

40 CATEGORY A AND CATEGORY B LICENCE REQUIREMENTS

(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies--

(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal,

(c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner,

(d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm,

(e) such other requirements relating to security and safe storage as may be prescribed by the regulations.

: Maximum penalty--20 penalty units or imprisonment for 12 months, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

26. The specific requirements for a Category H Licence are set out in s 41, which provides:

41 CATEGORY C, D AND H LICENCE REQUIREMENTS

(1) The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies--

(a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated,

(b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,

(c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm,

(d) such other requirements relating to security and safe storage as may be prescribed by the regulations.

: Maximum penalty--50 penalty units or imprisonment for 2 years, or both.

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.

27. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a)   the refusal of or failure by the Commissioner to issue a licence or Licence (other than a Licence in respect of a prohibited firearm) to the person,

(b)   a condition imposed by the Commissioner on a licence or Licence issued to the person,

(c)   the revocation of a licence or Licence issued to the person (other than a revocation on the basis that the holder of the licence or Licence is subject to a firearms prohibition order or an apprehended violence order),

(d)   ..

(e)   …

(f)   …

(g)   …

(Emphasis added)

28. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

29. The Tribunal has jurisdiction under the Firearms Act as noted at [27] above.

30. An application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

31. The applicant filed his application for administrative review on 11 March 2022. The Internal Review decision was made available to the applicant on or about 17 November 2022. The application has been lodged within time.

Issues for determination?

32. The issues are as set out by the Commissioners delegate:

• Is the applicant a fit and proper person to hold a firearms licence?

• Is it in the public interest for the applicant to hold a licence?

33. These issues will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s evidence

34. Exhibit ‘A1’ - statement applicant 25 May 2022.

35. Exhibit ‘A2’ – application bundle filed 11 March 2022.

Respondent’s evidence

36. Exhibit ‘R1’ documents filed under s 58 ADR Act on 28 April 2022.

37. Exhibit ‘R2’ affidavit Senior Constable Hedley – 20 July 2022.

38. Exhibit ‘R3’ confidential documents – 22 July 2022.

39. Both parties were legally represented. They provided written submissions and made oral submissions at hearing. The applicant and SC Hedley were both cross-examined.

The applicant’s oral evidence

40. The applicant adopted his statement (A1). He concedes that on 8 July 2020, after appearing before the Foster Local Court on charges 1 and charges 2 he entered a guilty plea. The guilty plea was entered on the basis of the amended facts which he states more accurately reflected the circumstances of his offending. He states the unsecured ammunition related only to some ammunition found on a shelf above his gun safe, a reference to there not being room for a round tin in the ammunition safe was deleted from the facts.

41. The reference to the applicant’s partner having access to keys for the gun and ammunition safes was also deleted from the facts tendered before the Local Court. Similarly, the issue relating to the laser pointer and any offence was also deleted from those facts.

42. In relation to the powerhead, the applicant concedes that it was found by police in his gun safe when the safe was inspected. He states he had never used it and had placed it there a ‘long time ago after receiving it as part of a deceased estate.’ He did not realise he needed a permit to possess the powerhead and had ‘no interest in it.’

43. In evidence in chief the applicant was asked why he considered it inconvenient when the police attended his property. He said this was on two bases. First, his partner was in bed. Second, there had been a power outage and he was concerned that there might be an electrical fault that could cause a fire. When police arrived the applicant said he was checking the fuse down the driveway in an attempt to investigate the power outage.

44. The applicant asked police when they requested to undertake the inspection if they could return later. That request was denied. Upon entering the house with the police the applicant assumed his partner was still in bed in the bedroom where the ammunition and firearm safes were located. Upon entering the room the applicant said “My partner was not there, I made room and started opening the safes.” The applicant described the police as being not pleasant towards him. He was also “disgusted” in the way in which the police undertook the inspection.

45. The applicant said that there was some ammunition out of the firearm safe as he was expecting someone to come for dog trapping. He denied having taken any firearms out of the safe before the inspection. He agreed that there was a box or tin of ammunition on the shelf above the firearms safe which had been taken out before the inspection. The applicant also said there were two large tins on the floor of his bedroom and the other ammunition on the shelf. He was asked by his solicitor, Mr Mainstone, how long had the ammunition been out, he said
    Not long before the power problem, my computer and TV on the shelf went out when I noticed it.”. Referring to that day.

46. The applicant was cross-examined.

47. In relation to the ammunition being outside of the safe he contends that the amended police facts more accurately reflect the true circumstances about the inspection. That being, that he had removed the ammunition from his ammunition safe that morning as he was expecting to go dog trapping. I do not accept his evidence for the following reasons.

48. First, I accept and prefer the evidence of Senior Constable Hedley that he could not locate the keys to the ammunition safe. Despite searching through the bedroom he asked his partner to also search for the key. The applicant’s partner “picked up a key from the desk next to the ammunition cabinet” which the applicant took to open the ammunition safe. This version was not put to Senior Constable Hedley in cross-examination. This is despite the applicant denying that there was a search for the keys in his evidence. The applicant alleged that his brother turned up and gave him the key. I do not accept this evidence as this is not in his statement and is not at all recorded in the statements of police. I find, on the balance of probabilities, that it is unlikely that the ammunition was removed from the safe on the day of the inspection given the applicant was unaware of where the key to the ammunition safe was.

49. Second, the applicant contends that the Buffalo brand tin containing a large amount of ammunition and the round Mermaid biscuit tin also containing ammunition had been removed from the ammunition safe. He was shown photographs contained in the s 58 documents at page 80 of the ammunition safe and it was put to him that there appears to be no room for the large Buffalo tin and round Mermaid cookie tin to be placed in that safe. He responded “I can see room for more.”

50. It is not in contest that both of those tins are not lockable tins. From my observation the ammunition safe is packed full of ammunition. It may be possible one of the tins to be placed into the ammunition safe having viewed those photographs, but not both. My observations are consistent with the statement of Detective Senior Constable Tancred (1 May 2020) where he states:

‘Mr Laughton opened his ammunition safe which contained a large amount of ammunition and it appeared like no further ammunition boxes would fit in it. Mr Laughton proceeded to move around items in the ammunition safe in order to show where the items found on the floor would normally be stored. After moving around other ammunition boxes in the safe Mr Laughton was still unable to fit all the ammunition in the safe.’

51. I prefer the evidence in the statement of Detective Senior Constable Tancred over the evidence of the applicant about whether the two tins containing ammunition would be able to fit in the ammunition safe. I also have considered the evidence of Senior Constable Hedley in her statement (4 May 2020) where she states:

‘The safe contained a large amount of ammunition and the accused proceeded to shift boxes of ammunition around in order to demonstrate where the Buffalo brand tin would normally positioned within. Despite this, the accused was unable to find a position for the round ammunition tin.’

52. Senior Constable Hedley’s evidence is consistent with Detective Senior Constable Tancred’s and my observations.

53. Third, the applicant conceded that the ammunition in plastic bags and loose in the beige container had been on the shelf for about a week, at the commencement of the rain, ready to be used for wild dogs. In answer to a question in cross-examination, the following exchange took place: “You did not demonstrate to show where the Mermaid cookie tin went in the safe” the applicant answered “Not to my memory.” The applicant does not deny the version given by police and I prefer the police version of events concerning the round tin.

54. However, in cross-examination it was put to the applicant the ammunition in the plastic bag on the shelf near the TV: If you look at photograph on page 81 and 83, the applicant agreed this depicts the ammunition on the top of the safe. When asked about the plastic resealable bag in the photograph on page 83 he said: “Yes, this fell out of a box a day before.” He was then asked: “They were out of the safe the day before.” He answered “No, I took that out on the morning to go hunting.”

55. The applicant’s answer about the ammunition on top of the safe was inconsistent. On one version he said the small bag sitting on top of the safe fell out a day before. Then he changed his evidence and said that the ammunition was taken out on the morning of the inspection to go hunting. In the statement of Senior Constable Hedley when the applicant was asked about the plastic bag containing ammunition on the shelf with the TV the following exchange took place. Senior Constable Hedley said “Who owns this”, the applicant said “It’s mine.” The Senior Constable said “How long has it been sitting there?” the applicant said “About a week, ever since the rain started. I use it on the wild dogs.” Senior Constable Hedley then said that the applicant “could not account for the other rounds of ammunition scattered about the shelf, some of which were located beneath other items and appeared to have been in situ for some time.”

56. The applicant in the Agreed Statement of Facts handed up at the Local Court confirmed the version of events that the small plastic bag with ammunition “had been on the shelf for about a week, at the commencement of the rain, ready to be used on wild dogs.” These are the facts he pleaded guilty to. I find the applicant has changed his version of events. This creates a doubt in my mind as to the reliability of evidence. I do not accept his differing version of events about how long, and the reason, the ammunition was not secured in the ammunition safe.

57. Generally, I am not satisfied the applicant is an honest and reliable witness.

Whether the applicant delayed the inspection because his partner was in the bedroom

58. I am satisfied that at the time the applicant went to the front gate to meet the police he may have believed his partner was in bed. However, I accept the evidence of Senior Constable Hedley that the applicant’s partner was standing on a balcony in a gown. I find at this stage she was not in the bed in the bedroom where the ammunition and firearm safes were.

59. The applicant concedes that when he entered the bedroom before police were allowed in he realised that his partner was no longer in bed. I accept Senior Constable Hedley’s evidence that the applicant’s partner appeared from a room which was not the bedroom when police entered the house. Detective Senior Constable Tancred said that the applicant was in the room for a short period of time before the police demanded to enter the room. Detective Senior Constable Tancred could hear things being moved around before the bedroom door was opened. The applicant says it was only a matter of minutes before he opened the door and allowed police to enter the bedroom. He denied that he did not let the police into his bedroom in an attempt to move unsecured ammunition to a secured location before police entered the room, with full knowledge that his partner was not in the bedroom which was the reason police were not immediately granted access to that room. I find it is more likely than not, that the applicant was attempting to tidy the room and possibly move loose ammunition before police entered. This is because the applicant knew his partner was not in the bedroom when he entered and he still denied police access even if it was for a few minutes.

Possession of the powerhead and laser pointer

60. The applicant does not deny he was in possession of a powerhead which was stored in the ammunition safe. The applicant says that he had been in possession of the powerhead for a long time after receiving it as part of a deceased estate. However, in cross-examination the applicant conceded that he had held the powerhead for a matter of months and he agreed that it was possible his statement of holding it for “a long time” was not correct. The applicant’s evidence in this regard again contributes to my findings that he is not a reliable witness. Although some credit must be given to the applicant in conceding that when he referred to holding the powerhead for a ‘long time’ that was not correct he answered “possibly”. This was a moderate concession given by the applicant. However, one in my view which demonstrates the applicant’s attempt to minimise his conduct in relation to these proceedings generally and his conduct which is subject to this review.

Possession of the laser pointer

61. The applicant does not dispute that he was in possession of a laser pointer.

The evidence of Senior Constable Hedley

62. In the statement of Senior Constable Hedley dated 4 May 2020 she confirms that the applicant was a registered owner of 26 firearms. He was also storing another 5 firearms registered to his brother. I accept the uncontested evidence that Senior Constable Hedley and Detective Senior Constable Tancred attended the applicant’s property, without notice, to undertake an inspection of his firearms. Senior Constable Hedley confirmed in cross-examination that the applicant gave a number of reasons for refusing the police immediate access to the property to undertake the inspection and asked for them to return after a period of time. Those reasons are set out above. I accept the evidence of Senior Constable Hedley that when the applicant said his partner was asleep in bed she observed his partner to be standing on a balcony in a gown. I also accept that when police entered the applicant’s home the applicant’s partner emerged from a room that was not the bedroom in which the applicant said his partner was sleeping.

63. I accept that the partner of the applicant told Senior Constable Hedley that when the applicant goes away for work ‘I take the keys (gun safe keys) and hide them in the house.’ The applicant’s partner was not called to give evidence and this statement was not challenged.

64. As indicated above, I have made findings with regard to the observations made of Senior Constable Hedley concerning the applicant’s attempt to demonstrate where the two boxes of ammunition were located in the ammunition safe on the morning of the inspection before he alleges they were removed.

65. Despite cross-examination I find the evidence of Senior Constable Hedley reliable. I find she is an honest witness.

Confidential Information

66. [CONFIDENTIAL]

67. [CONFIDENTIAL]

68. [CONFIDENTIAL]

69. [CONFIDENTIAL]

70. [CONFIDENTIAL]

Character References

71. The applicant included two character references in documentation handed up to the Magistrate dealing with the criminal charges. The references are from Marius Haymann dated 2 June 2020 and Art Brown dated 4 April 2020. Neither of the references refers to the applicant’s offending. However, they attest to his community involvement and important work in controlling wild dogs. Due to them not referring to the matters for consideration in this proceeding I give them some weight.

Applicant’s submissions

72. In written submissions the applicant contends that the Tribunal should place significantly more weight on the amended fact sheets tendered to the Court rather than the full, unredacted facts relied upon by the Commissioner in its internal review of the decision.

73. The applicant says that the offences relate to a small amount of ammunition stored on a shelf above his gun safe and a powerhead that was stored in the applicant’s safe for many years and had never been used by him. I accept, as submitted, no firearms were unsafely stored and they were in their gun safe at the time of the police inspection.

74. Significant weight should be given, according to the applicant, to his remorse and contrition for his offending and that the Local Court placed the offences at the lower end of the scale of objective seriousness. This is reflected by the short 3 month bond for each offences that was given to the applicant in sentencing.

75. The applicant submits that I should take into consideration a long history of incident free possession and use of firearms and that the applicant is held in high esteem in his local community where he is a volunteer Rural Fire Service officer and worked with wild dog control. I have given consideration to this.

76. In oral submissions the applicant submits that the inspection occurred at a time where no appointment was made.

77. The applicant submits that the Tribunal should be satisfied that police came on the day for an inspection and unreasonably did not return at the request of the applicant when it was a more convenient time for the inspection to take place. The applicant accepts that the ammunition was out of the safe because he was going dog trapping that day. But it was not that the ammunition was lying around for weeks on end. I do not accept this submission.

Respondent’s submissions

78. The respondent submits that the Tribunal should be satisfied on the available evidence that the applicant had ammunition outside of the ammunition safe for a longer period than the day on which the inspection occurred. In that regard the respondent contends that the applicant’s explanation concerning the two tins on the floor and the ammunition on the shelf has been inconsistent because of a number of different explanations he has given. I accept these submissions

79. The respondent submits that it is not in contest that the applicant had a powerhead in his possession when he was not authorised to do so. Likewise, he had a laser pointer in his possession.

80. In determining whether the applicant is a fit and proper person to be trusted to have possession of firearms without danger to public safety or the police, the requirement is to consider the fitness and propriety of the applicant. This invites a consideration of his conduct and character. The overarching purpose of determining whether an applicant is a fit and proper person is the protection of the public. The basic test involves 3 things: honesty, knowledge of requirements and ability to comply. In Weckert v Commissioner of Police, NSW Police Force [2010] NSWADT 197, the Tribunal made an assessment as to the honesty of the applicant’s conduct, which led to a decision to affirm the Commissioner’s decision to revoke the applicant’s firearms licence. That reasoning, in the respondent’s submissions is apposite.

81. The respondent submits that a licence may be revoked if the applicant contravenes any provision of the Firearms Act or Regulations, whether or not the applicant has been convicted of an offence for the contravention (referring to s 24(2)(b)(ii)).

78. The specific requirements in relation to a holder of a category AB licence is set out in s 40 of the Firearms Act and that is to include a requirement to keep ammunition for licenced firearms stored in a locked container of a type approved by the Commissioner and separate from the receptacle containing any such licenced firearm.

79. In the decision of Busuttil v Commissioner of Police [2013] NSWADT 305 the Tribunal observed the following:

1. the Commissioner has a discretion to revoke a firearms licence [43];

2. a discretion is to be exercised in promotion of the objects of the Firearms Act which places emphasis on the public interest over private interests [44];

3. while the Firearms Act does not provide express guidance on how the discretion is to be exercised, an underlying principle of the Act (s 3(1)) is that firearm possession and use is a ‘privilege that is conditional on the overriding need to ensure public safety’ [47];

4. numerous Tribunal decisions have emphasised that the discretion ‘should be exercised in a way which promotes the principles and objects of the Act’ [45]’;

5. ‘responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them’: Wiltshire v Commissioner of Police, NSW Police Force [2005] NSWADT 75 at 48;

6. the intention of the legislature is apparent from the comments by the late the Honourable JW Shaw, Attorney-General and Minister for Industrial Relations in the second reading speech on 25 June 1996:

The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licenced or trained in their safe use, accidental shootings can occur. And it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents. (At [54])

84. In Busuttil, the Tribunal ultimately decided to affirm the decision to revoke the firearms licence of the applicant in that matter (notwithstanding considerable evidence as to his good character), noting that ‘the obligation on a licensee to take all reasonable precautions to meet safekeeping requirements is a heavy onus.’ And that such a contravention constituted a ‘fundamental breach of the Act’. I adopt these submission in this matter.

85. The respondent submits that the reasoning in Busuttil is closely aligned to this matter and the underlying policy principles of the Firearms Act, namely, to protect the public by way of a system of strict controls in relation to the possession and use of firearms.

86. The respondent relies on the following characteristics of the applicant’s approach to the safe storage of firearms due to factors arising at the inspection event:

1. Approximately 400 rounds of ammunition being left unsured in the bedroom of the applicant’s residence.

2. The applicant’s inability to account for much of this unsecured ammunition and the non-complying explanations for the balance.

3. The applicant’s inability to easily locate the keys to the ammunition safe, despite suggesting in the applicant’s statement that he had opened it just prior to the officers’ attendance at his property.

4. The applicant’s partner’s admission that, in the applicant’s absence from his property, she has access to the keys to the firearms safe and, in turn, his firearms, despite not having a firearms licence.

5. The fact that the applicant’s partner was also residing at the applicant’s residence someone who was on bail at the time for child abuse material offences.

6. The applicant’s apparent stalling tactics in admitting the officers into the bedroom with the firearms safe, which suggests the applicant was attempting to obfuscate known breaches of the safe storage laws; and the applicant’s possession of the powerhead, which even from a generous perspective, indicates carelessness as to the need for firearms licence holders to be aware of their rights and obligations which is consistent with the applicant’s approach to safe storage.

87. The respondent submits that the Tribunal should be concerned of the applicant’s attempt to minimise his conduct and not offer a fulsome explanation for it. The respondent contends that even on the most generous approach to the applicant’s account of events, he deliberately, rather than carelessly or unintentionally, breached the requirement to securely store ammunition and keep firearms separate from it. This also raises concern about the likelihood of future compliance and his overall fitness and propriety.

Public Interest

88. In the present matter, Senior Constable Hedley’s observations about the applicant’s disregard for safe storage laws resulted in multiple breaches of the Firearms Act over time and apparent efforts to inhibit the inspection caused her to form the view that he posed an undue risk to the safety of the public. The respondent submits that the presence of Mr Mark Fleming at the premises, a person on bail as a result of child abuse material offences, would have resulted in a suspension of the applicant’s firearms licence. Senior Constable Hedley formed the view that the public interest was impacted as a result of the applicant having access to a firearm licence.

89. [CONFIDENTIAL]

90. [CONFIDENTIAL]

91. [CONFIDENTIAL]

92. [CONFIDENTIAL]

93. The Tribunal cannot be satisfied there is virtually no risk and in light of the above evidence the risk to public safety outweighs any personal interest of the applicant holding a firearms licence.

Fit and proper

94. In CSC v Commissioner of Police [2016] NSWCATAD 211 at [165] to [175] the Tribunal noted:

In Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127 Dixon CJ, McTiernan and Webb JJ said at [9] that the expression ‘fit and proper person’ generally involves honesty, knowledge and ability.

In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 the High Court observed that the expression ‘fit and proper person’ takes its meaning from its context. In certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perceptions likely to future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

The question of whether the applicant is a fit and proper person involves a value judgement to be made in the context of the particular activity to be undertaken. In Wilkinson v Commissioner for Police (2002) NSWADT 59 the ADT said:

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

In Romanos v Commissioner of Police, NSW Police Force [2019] NSWCATAD 272 the Tribunal observed, by reference to prior Tribunal decisions, that ‘fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence’ and that ‘[t]he Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety.

95. The respondent submits that the success of the firearms licensing regime is dependent on strict compliance with safe storage requirements at least to an equal extent as the regime requires propriety in firearm licence application submissions.

96. The Commissioner relies on the following factors which weigh against the applicant’s fitness and propriety:

1. the applicant’s unwillingness to admit the officers into his property to run the inspection;

2. the inconsistency between the officers’ observation and the applicant’s representations as to the whereabouts, and state of dress, of Ms Fleming;

3. the applicant’s apparent stalling tactics in admitting the officers into his bedroom to inspect the firearms and ammunition;

4. the inconsistency between the applicant’s claim that he had removed one of the unlocked tin containers storing ammunition just prior to the officers’ attendance and his inability to locate the keys to the ammunition safe; and

5. the applicant, at best, failing to make reasonable enquiries about the powerhead; at worst, not being forthcoming as to his knowledge of the powerhead.

97. [CONFIDENTIAL]

98. [CONFIDENTIAL]

99. In conclusion the respondent submits that the correct and preferable decision is to affirm the decision under review.

My consideration

100. The decision under review is based upon the Commissioner’s contention that the applicant having access to firearms would be contrary to the public interest and the applicant is not a fit and proper person to hold the Licence.

Public interest

101. In respect of the public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Act identifies a purpose to deal with public safety at s 3(1)(a) of the Act.

Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1)   The underlying principles of this Act are:

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

(b)   to improve public safety:

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

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

102. The Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25.   In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or Licence as irrelevant considerations.

103. When reviewing these decisions the Tribunal has determined that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered - see Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

104. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

105. Cases often cited include: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Ward v Commissioner of Police, NSW Police Service Deputy President Hennessy referred to the public interest at [27]-[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. ….

106. In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, the Tribunal said, which I adopt:

[31]   In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

[32]   The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

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

[33]   The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

107. As noted in Commissioner of Police v Toleafoa [at 33] the 'public interest' is:

…

33.   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. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

108. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. The notion of “virtually no risk” should be taken into consideration with some caution.

109. The underlying principles of the Firearms Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, NSW Police Service at [28] the Deputy President said that in terms of public safety, ‘the Tribunal must be satisfied there is virtually no risk’.

110. Given my findings with respect to the applicant’s lack of candour in him storing ammunition, I find that the factors related to public safety should be weighed against the applicant’s favour. A cavalier attitude to the storing of ammunition and the lack of candour about that attitude is in my view not in the public interest. The applicant’s conduct in this regard does not further the principles set out in s 3 of the Firearms Act which include:

(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

…

111. I find that the applicant did not comply with the condition required of him in s 39 and 40 of the Firearms Act to safely store ammunition. I also find that a similar cavalier attitude to possessing a powerhead is also contrary to the principles set out in s 3 of the Firearms Act. I therefore cannot be satisfied that there is ‘virtually no risk’ to public safety were the decision to be set aside.

Whether the applicant is a fit and proper person to hold a firearms licence

112. In Weckert, even where there was a finding of virtually no risk to public safety, the Tribunal affirmed the Commissioner’s decision to revoke a firearms licence due to the applicant having acted dishonestly when applying for a firearms licence. I accept the respondent’s submissions that the success of the firearms licensing regime is dependent on strict compliance with safe storage requirements, at least to an equal extent as the regime requires propriety in a firearm licence application. I find that the applicant is not a fit and proper person to hold a firearms licence for the following reasons:

1. I am satisfied that at the time in which the police attended to undertake the inspection event the applicant was unwilling to comply with their request at that time. I have considered the fact that ordinarily police would arrange for an appointment before conducting an inspection. However, there is no legal requirement for them to do so, rather, it is more of a courtesy. Of particular concern is the applicant’s response to not allowing police to enter the bedroom immediately when he realised that his partner was not in bed, which was a reason for which he initially asked the police to return at a different time to carry out the inspection event. This is, notwithstanding, he felt inconvenienced and disgusted in the way the police apparently conducted the investigation.

2. The inconsistency in the applicant’s explanation that he had removed at least one of the tins of ammunition from the ammunition safe on the morning before the inspection event. For the reasons set out above. I do not accept his evidence in this regard.

3. The inconsistency of the applicant’s evidence concerning when the ammunition was removed and placed on the shelf.

4. The applicant failing to make enquiries about the powerhead which was in his possession and the attempt to minimise the possession of that powerhead when he said it had been in his possession for a very long time and then changed his evidence to a few months.

5. [CONFIDENTIAL]

1. [CONFIDENTIAL]

113. Overall, taking into consideration all of the evidence, I am not satisfied that the applicant has demonstrated he is a fit and proper person to hold a firearms licence.

114. The public interest is only served where a person is fit and proper to hold a firearms licence. That involves a licensee, such as the applicant, providing accurate information and furthering the principles in s 3 of the Firearms Act. I am not satisfied that the applicant has done so for the reasons set out above. I am also not satisfied that the applicant has securely stored ammunition in accordance with the provisions of the legislation. This is a serious concern for public safety.

115. In relation to the allegation that the applicant had his partner’s son staying at the premises whilst on bail, I am unable to make a positive finding that this occurred and give that allegation no weight.

116. I am satisfied that the correct and preferable decision is to revoke the applicant’s firearms licence. The decision under review is affirmed.

117. In the circumstances I conclude there is a real and appreciable risk to the public should the applicant hold a firearms licence. It is not in the public interest for the applicant to continue to hold his firearms licence.

Orders

1. The decision under review is affirmed.

**********

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: 09 January 2023