Livet v Commissioner of Police, New South Police Force
[2014] NSWCATAD 144
•17 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Livet v Commissioner of Police, New South Police Force [2014] NSWCATAD 144 Hearing dates: 13 August 2014, 8 September 2014 Decision date: 17 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Prof G D Walker, Senior Member Decision: The decision under review is affirmed.
Catchwords: FIREARMS - licence revocation - firearm being carried - safe storage --silencer Legislation Cited: Civil and Administrative Tribunal Act 2013; Firearms Act 1996; Firearms Regulation 2006; Weapons Prohibition Act 1998. Cases Cited: Azzopardi v Commissioner of Police, New South Wales Police Force (CoP) [2013] NSWADT 205; Bidas v CoP [2013] NSWADT 220; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409; French v CoP [2013] NSWADT 221; Green v CoP [2014] NSWCATAD 59; Kudrynski v CoP [2001] NSWADT 101. Category: Principal judgment Parties: Aaran Thomas Livet (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)Representation: McGirr Lawyers (Applicant)
Sparke Helmore (Respondent)
File Number(s): 1410228 Publication restriction: S64 of the Civil and Administrative Tribunal Act 2013 applies to confidential exhibit CR 3; and confidential evidence of S/Const Millar.
reasons for decision
The applicant Mr Aaran Thomas Livet on 20 September 2012 applied to the respondent for a firearms licence. A category AB licence was granted to the applicant on 10 November 2012. That licence was suspended on 26 June 2013 as the Commissioner formed the view that there might be grounds for revoking it. On 3 October 2013, a delegate of the Commissioner revoked the licence on the basis that it was not in the public interest for the applicant to continue to hold a licence.
An internal review of the Commissioner's decision affirmed it on 5 February 2014 on public interest grounds for the reasons that the applicant had taken his firearms to work to show to colleagues, had left them unsecured in his vehicle while he continued to work, had made a silencer for one of his firearms in the workshop at his place of employment and had informed work colleagues that he had done so.
The applicant applied to this tribunal for a review of the Commissioner's decision on 2 May 2014. The tribunal has jurisdiction to conduct such a review by reason of s 29 of the Civil and Administrative Tribunal Act (No 2) 2013 (CAT Act) and s 75 of the Firearms Act 1996 (the Act). In considering an application for review, the tribunal is not restricted to a consideration of the material that was before the original decision-maker, 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 179; (1979) 46 FLR 409.
For the purposes of the review the Commissioner originally relied on five grounds in seeking to have the decision under review affirmed:
- It is not in the public interest for the applicant to continue to hold a licence (s 25(2)(d) of the Act and cl 19 of the Firearms Regulation 2006) for the reason that the applicant infringed s 7(1) of the Weapons Prohibition Act 1998 (WP Act) in that he possessed a silencer within the meaning of cl 4(3) of schedule 1 of the WP Act.
- The applicant is not a fit and proper person who can be trusted with firearms without danger to public safety or the peace (ss 11(3) and 24(2)(a) of the Act).
- The applicant supplied information that was false or misleading in a material particular in his application for a licence (s 24(2)(b) of the Act).
- The applicant contravened a (safe storage) provision of the Act or the Firearms Regulation, regardless of whether he was convicted of an offence for the contravention (s 24(2)(b)(ii) of the Act)
- There are criminal intelligence reports or criminal information that the applicant is a risk to public safety and the applicant's possession of a licence would be contrary to the public interest (ss 11(5A) and 24(2)(a) of the Act).
At the submissions stage the respondent withdrew the fit and proper person ground, but maintained the public interest ground and the other specific objections raised. Those specific matters also had a bearing on the public interest.
The issue in this review is thus whether the correct or preferable decision is to affirm the Commissioner's decision, set it aside or vary it, having regard to the grounds relied on by the respondent.
Applicable legislation
Section 11 of the Act deals with general restrictions on the issue of licences. It provides as follows:
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.
(2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence).
(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
(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
(3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.
(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:
(a) the applicant's way of living or domestic circumstances, or
(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c) the applicant's intemperate habits or being of unsound mind.
(5) A licence must not be issued to a person who:
(a) is under the age of 18, or
(b) has, within the period of 10 years before the application for the licence 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
(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or
(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or
(e) is subject to a firearms prohibition order.
(5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that:
(a) the person is a risk to public safety, and
(b) the issuing of the licence would be contrary to the public interest.
(5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A).
(6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person.
(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 24 sets out the circumstances in which a licence may be revoked:
24 Revocation of licence
(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 permit 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 permit 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.
(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
The safe storage requirements are set out in ss 39 and 40:
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.
(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
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.
Applicant's evidence
At the hearing the applicant did not tender a witness statement as such, but relied on the statement of grounds attached to his application for review (exhibit R1, tab 9). That statement is a mixture of submissions and factual allegations, but in so far as it relates to matters of fact it states that the applicant alleges that there was an ongoing campaign to discredit him at his previous place of employment, Australian Native Landscapes Pty Ltd (ANL). He said that he had stopped at his place of employment briefly after purchasing a .22 rifle from the Bankstown Gun Shop on 27 November 2012 (see receipt exhibit A1) in order to collect some tools, as ANL was on the way from the gun shop to his place of residence, where he placed the rifle in proper storage.
The applicant said that the firearm in question never left the gun pouch in which it was carried, and had the bolt removed at all material times. It did not leave his care as it was in a locked car that was never more than 10 m away from the applicant and always within view. Claims raised about improper storage on 25 June 2013 were purely conjecture. The applicant denied making a silencer for the rifle or telling anyone that he had done so. He believes that his former co-workers are not experts in these matters and would not know what a silencer was, as opposed to a flash suppressor for example.
At the hearing the applicant adopted that statement and said that before applying for a firearms licence he had gone to Mona Vale police station and had asked the officer on duty if he had any criminal history within the last 10 years. He did not recall the exact date of his visit to the police station, or the name of the officer he spoke to. He had in fact been charged on 8 June 2001 with supplying a prohibited drug and possessing a prohibited drug (exhibit R1, tab 2). After a one-week jury trial in the District Court he had been acquitted of the supplying charge but decided to plead guilty to possessing a small quantity of amphetamine in order to spare his family the strain of a further trial. For that offence he was placed on a two-year bond on 1 May 2003.
At the time of visiting Mona Vale police station he could not clearly recollect the dates of those events and therefore wished to clarify the matter from police records. He explained to the officer on duty that he proposed to apply for a firearms licence and needed to know if he had any convictions in the last 10 years. After checking computer records, the officer said to him, "No, you're good to go". In fact the date of conviction, 1 May 2003, was still within the 10 year period. He believed the officer must have looked at the charge date instead of the conviction date.
He had obtained his firearms licence in November 2012 and had purchased the rifle, a new CZ .22 bolt-action repeater on 27 November. An employee named Con had packed it for him. He had locked the bolt and ammunition in the glovebox of his utility truck and had placed the rifle in its carry bag on the passenger seat, as it would not fit behind the seat of the single-cab utility. The vehicle had tinted windows and it was not possible to see into it from the sides.
As ANL was on his way home from the gun shop, he stopped at work in order to collect some tools that he needed in order to instal the approved gun safe that he already had at home. He showed the rifle to a couple of fellow-workers because he considered it an achievement to obtain his licence. The rifle was in its carry bag, which was unzipped, but it never left his locked vehicle and he was never more than 10 m away from it when collecting the tools. He stayed at work for no more than 10 minutes, then continued home, bolted the safe to the wall and placed the rifle in it. The police had inspected the safe and approved it.
He had never made a silencer but did make a flash suppressor. The rifle had come from the factory with an outside thread already on the muzzle and he wanted a flash suppressor partly for cosmetic reasons. He made the attachment from a plain hollow aluminium tube with a plug in one end for the thread. He had, however, used the wrong thread and the tube could not be attached. He therefore discarded it into the metal recycling bin. He had never told his workmates that he was making a silencer.
The applicant said he had been brought up with guns as his father was a keen shooter, and he assisted his father but did not himself shoot. He had, however, shot clay pigeons at the Duffy's Forest shotgun range, where no licence was needed.
Before joining ANL, he had worked for a company called Letchford Engineering at Terrey Hills, but had been "poached" by ANL. The other ANL workers did not like it when he had joined the company because he was placed above others, some of whom had been there for 10 years. He had some "ups and downs" with David Ferguson, who had tried to have him dismissed. The manager, Pat Soars, had asked the applicant about David Ferguson's son, who had been making mistakes at work and had broken every machine he worked on. As a result of the applicant's report, he had been demoted and David Ferguson had "had it in for" him. He had also criticized Harley Soars, the manager's son, who was his apprentice. As a result of workplace tensions he was excluded from social functions for years, but became accustomed to it.
In June 2012 the police came to his house without notice to perform an inspection, at a time when the applicant's fiancée was there. She did not know that the applicant owned any guns and he did not want to tell her about them at that time because her father and grandfather had been shot dead in the Bosnia-Serbia war. He therefore asked the police to return the next day. When they returned he removed the rifles from the safe, whereupon they told him they were confiscating them on public interest grounds. He was upset about the matter and telephoned the police for information but could get no reply until 12 months later.
He had lost his job at ANL because of the bullying and arguing that was taking place, as the employer did not want such ongoing disputes. After he had left, he received some text messages of an offensive nature which did not identify the sender. As a result of information obtained on summons, the sender had been identified as Craig Buddle, a manager at ANL (exhibit A3). Subsequently the applicant had married his fiancée and had returned to work at Letchford, in stable employment similar to that of a fitter and turner.
In cross-examination the applicant said that he did not actually remember the dates of his trial and conviction, having tried to forget the whole thing. He had asked the police for advice about the date. The date of the charge was in fact over 10 years. Asked whether he had asked the officer for the date of conviction, he replied that he told the officer why he wanted to know and that it needed to be over 10 years ago. He believed he did ask for the conviction date. He denied ever going under the alias Graham Hart as was alleged in his criminal history (exhibit R1, tab 2). That was the name of a friend he had known when he was 20 and he had never used that name.
His attention was then drawn to a 1998 fact sheet (exhibit R1, tab 4j) concerning unlawful possession of a fake number plate. He said he did not recall the court appearance on 16 September 1998 but the charge was dismissed as no evidence was offered. Asked about the negligent driving matter in which he had driven a Ford Cortina station wagon that had been stopped by police by reason of apparent irregularities concerning its number plates, followed by flight, a police pursuit and a collision with another vehicle, he replied that he could not recall the incident or a Cortina station wagon, or whether he had displayed a disregard for public safety. He found such matters embarrassing.
He did, however, recall the drug charges outlined in exhibit R1, tab 4n. There were supplies of amphetamines and ecstasy on the premises when the police executed a search warrant, but they belonged to Stephen Grant, who had been living there at the same time and who also owned the notebook containing lists of names. The drugs were not in his bedroom, but in a spare room and had nothing to do with him. A bag found in his room that police said was "believed to be" amphetamines actually turned out to be sugar. He had chosen to plead guilty to possession of 1 g of amphetamine that was found in the kitchen. Although it did not belong to him he could not put his family through the strain of another trial. At no time had he been selling drugs.
He did not recall the fracas on 21 January 1998 described in exhibit R1 ,tab 4a. At that time he had owned a Toyota Celica, but it had not been registered. He was in fact assaulted by the man named Jason as stated in about 1998, indeed on several occasions, but did not recall the rest of the incident. He had pleaded guilty on that occasion and had been convicted.
He had purchased his first rifle in November 2012. He had been using his personal company vehicle and had only been working a half-day on that date. Asked why he did not take his gun safe to the shop, he explained that it is designed for a house and could not be secured in the car. Anyone could have had access to it. It would be illogical anyway to carry the safe because it was lawful to take the rifle home in his car. When buying the CZ he had not asked for a rifle with a threaded muzzle, but had asked for the best available. The CZ was a popular model and hundreds of them were sold every month. The thread ran about 1 cm from the muzzle and there was no foresight, as the rifle was designed to be used with telescopic sights. He had also purchased in February or March 2013 a Tikka .243 rifle, which did not have a threaded muzzle. He had used both rifles to shoot on the family property, both at targets and at rabbits. He used a powerful torch attachment to hunt at night, when the rabbits came out to eat.
A couple of weeks or a month afterwards, he had made an attachment for the CZ. He had made it at work, from aluminium, as he had permission to use ANL's equipment for private purposes. It was about 6 inches long with an internal thread about 1 cm in length, silver in colour and smooth inside. Because of the error with the thread, it did not work and he had destroyed it immediately afterwards and not made any others. It had been a mistake to make it.
The other workers there knew that he had made a flash suppressor, as he had told them that was what it was. It did not work as a silencer. Asked why he needed a flash suppressor, he said that when shooting at night it would reduce the risk of disturbing the game. Although there would still be the sound of the report, eliminating the flash would remove one element that might cause animals to scatter. He denied that a muzzle flash would only be visible if shots were fired in quick succession.
He had ended his employment at ANL in August 2013 and returned to Letchford. He had been dismissed from ANL because of the tensions that had been going on for years. There had been hostility towards him from the start, especially from David Ferguson. His work at the ANL workshop at 305 Mona Vale Road consisted of repairing machinery and vehicles, working on the manager's house and on other projects. There was CCTV inside the workshop. At no other time than November 2012 had he taken the rifles to work. He had shown the CZ to workmates on the day he collected it because he regarded it as an achievement to obtain his licence and did not know the others were hostile at that time. He had opened the passenger side door to Chris Eliasson and Harley Soars, and later to David Ferguson. When they came out of the workshop he saw them at the door and called them over saying "I've got it, have a look". The carrying case was unzipped but the rifle never left the car and the bolt was removed. Relations with the other workers had seemed satisfactory at first. After he showed them the rifle, "they were still fine although there were rocky points".
The text messages (exhibit A3) had arrived a week after he left. In his replies he had been "fishing" in order to find out who the sender was. He considered it a cowardly act and had believed the sender was Harley, but it transpired that it was Buddle, a manager with whom his relations had been mixed. The messages showed the kind of attack to which he was subjected.
The applicant tendered two references, one from Jon Gade of JG Tiling and Building dated 25 June 2014. Mr Gade stated that he had known the applicant for well over 10 years and watched him develop into adulthood. His past been troubled, but it had remained in the past. He had been involved with the applicant on hunting trips over the years, in which the applicant mainly held the spotlight and assisted with driving, until he obtained his own firearms licence. He had always been safety conscious for himself and others in the vicinity of, and the handling of, firearms. There have been numerous conversations between them concerning his licence revocation but Mr Gade thought he presented no concerns for the safety of his public or himself. He proved that he is a changed person over the 10 years Mr Gade has known him.
The other reference was from Christopher Gomarra, senior sales consultant with Raine and Horne, dated 26 July 2016. He is a married man with a family and holds a firearms licence. He stated that he provided the reference in full knowledge of the allegations made against the applicant in relation to retention of his licence. He had known the applicant for nine years, initially as a flatmate for 12 months and now as a close friend. When they met the applicant was older than Mr Gomarra and quickly adopted the role of guiding and mentoring him through many of his life's problems and responsibilities. He often referred to his own mistakes and lessons as guides to help Mr Gomarra to grow and learn.
He believes the applicant is a mature man of integrity and honesty, so much so that that his honesty has at times caused friction with others. He was never one to allow unethical or immoral practices around him or
within his environment. He particularly remembered the applicant telling him to avoid his then negative group of friends, saying "Chris, your life will never change for the better unless your crowd of influence does." He finds the charges against the applicant uncharacteristic and hard to comprehend. Aaran had worked very hard for the successful life he shares with his wife and family and is never irresponsible in any of his actions. Mr Gomarra holds a registration certificate in the real estate industry and understands what is needed to be a fit and proper person. He believes the applicant is a fit and proper person to hold a firearms licence. "He acts with responsibility and future thought at all times. He is also someone I trust with my own family and children".
Respondent's evidence
The respondent called Senior Constable CJ Millar of Northern Beaches Licensing Police, who adopted his report and accompanying comments (exhibit R2), in which he stated that following information received from a member of the public that the applicant had previously taken his two firearms to work at Terrey Hills and had made a silencer for one of them, police conducted computer checks to ascertain his address and attended at his place of residence. The police requested to conduct a safe storage inspection, but found the applicant to be very apprehensive in manner and asked if they could return the following day. On 26 June 2013 the police again attended the applicant's address and conducted a safe storage inspection, which complied. They looked inside the safe but saw no silencers. The CZ rifle, however, did have a thread on the end of the barrel. The applicant told police that he had purchased it with the thread already on it. Later police enquiries confirmed that the type of rifle in question is actually manufactured with a thread.
The police officers informed the applicant that they had received information regarding possible firearms breaches and deemed it to be in the public interest to suspend his licence and seize his two firearms. The applicant thereupon became agitated and repeatedly said "I don't understand". Statements were later obtained from David Ferguson and Chris Eliasson. Mr Eliasson said that at one point while at work Mr Livet had informed him that he had made a silencer for the rifle, and had shown it to him, whereupon he said to the applicant, "You're an idiot, it is likely to blow up in your face". Relevant checks on the COPS database revealed that the applicant had 34 events relating to traffic, street racing, drugs, street offences and malicious damage, six charges relating to drugs, in which he received a two-year bond, traffic matters and making a false police report about a stolen vehicle, 10 legal proceedings for traffic matters and 14 intelligence reports from 2001 to June 2013. These related to drugs, steroids, drug supply, traffic offences and theft and the. The applicant was also known to associate with "some high risk offenders from the Northern Beaches".
In his oral evidence in chief, S/Const Millar reiterated the narrative in exhibit R2, adding that after the two rifles had been seized the applicant had contacted police many times to enquire what was happening. At times he seemed to be suffering from irrational tunnel vision. The witness conceded that when a firearm is being carried from the place of purchase it should be in is carrying case but was not required by s 40 to be locked.
In cross-examination S/Const Millar agreed that the report he had received was made apparently months after the event, but no reason had been given for the delay. The applicant had duly reported his change of address and his safe did comply with legal requirements. The witness then gave some confidential evidence in relation to confidential exhibit CR 3 which was the subject of an order under s 64 of the CAT Act.
The respondent then called Mr David Ferguson, who adopted his statement of 1 July 2013 (exhibit R4) in which he stated that he had been employed by ANL as a fleet manager for the past 10 years and runs the workshop at 305 Mona Vale Road, Terrey Hills. He came into contact with the applicant about 3 ½ or four years ago when he was employed by ANL as a welder and fabricator at 305 Mona Vale Road, and also on some occasions before that. About six months previously (ie about January 2013) the applicant had come to work and had said to him," I got my gun licence and have a gun, come have a look". Mr Ferguson walked over to his utility and on the front seat on the passenger side was what appeared to be a .22 rifle. He picked it up from the seat and began to show it to the witness. Mr Ferguson then said, "Yeah, so what, it's a gun". He then walked off.
As manager at the workshop Mr Ferguson has staff who report to him on a regular basis. Several times staff have informed him that the applicant has produced his rifles in the workshop area and that he had been making a silencer in the workshop. The applicant's company vehicle is a single cab utility with no fitted toolboxes or gun safes, nor are there any gun safes in the workshop. On 26 June 2013 he was at the company office at 317 Mona Vale Road speaking with the owner, Patrick Soars. As they were standing there, the applicant drove in, jumped out of the utility, came quickly towards him, and then stood "right in my face". He said, "The police have taken my guns and someone has dobbed me in. There is only two people that would dob me in. You're one (pointing his finger right in my face) and Steve's the other one". He seemed very agitated and when he was pointing his finger at the witness Mr Ferguson felt very threatened. Patrick Soars said, "Aaran, settle down". The applicant continued to yell at Mr Ferguson, saying words such as, "You dobbed me in about the silencer, didn't you?". After a while Mr Ferguson simply walked away.
In his oral evidence Mr Ferguson added that in his position as welder and fabricator, the applicant had an assistant. There had been no competition for his role in the company. He was the only employee with his own company utility, as that was a condition of his appointment when Mr Soars had "poached" him. The company put on social functions, but they were not structured and members could simply come along as they wished. The applicant was not excluded, except in relation to Harley's 21st birthday party, as Harley did not like him and did not extend the invitation. But as he did not get on with the other workers he did not attend. At the time Mr Ferguson's son was working at the ANL workshop at Ryde, although he did visit from time to time. He started work three years previously at ANL, but left when he secured a position in iron ore mining in Western Australia. He appeared to be happy while he was at ANL.
Mr Ferguson repeated his account of the events involving the applicant showing him his rifle immediately after purchase. The rifle was out of its bag and in plain sight. There was only one rifle, a .22, and there were no other instances when he brought a firearm to work. Mr Ferguson did hear complaints from two or three people about his bringing a rifle to work, but they could have related to just the one instance. He heard about the silencer from others.
The applicant was dismissed because of various factors. He was warned orally and in writing about intimidating behaviour and bullying. He appeared to be trying to provoke others. He would settle down for a while after being spoken to, but would then resume the same behaviour. He would not follow instructions or work with others. Other workers were not bullying him, but he was arrogant and intolerant. His assistant did leave the company, but later returned.
In cross-examination Mr Ferguson said that he had often warned the applicant that he was risking dismissal. The applicant's toolbox was not broken into as claimed, but there was a note left on it warning others to stay away from it. Mr Ferguson did not believe, however, that the note signified that the toolbox had been tampered with. He doubted whether it was in late November that the applicant showed him the rifle. No one else had touched it. Mr Buddle was a manager at Terrey Hills, and Mr Ferguson was above him. Mr Ferguson did not know why it had taken six months to report the incident.
The respondent also relied on a statement dated 1 July 2013 by Christopher Eliasson, who stated that he had been working full time for ANL for 13 years and had known the applicant for six years through his work at ANL. Mr Eliasson holds a firearms licence and had a conversation with the applicant in about July 2012 about obtaining a licence and buying a firearm. A couple of months later the applicant told him that he had obtained his licence and not long after that said he had purchased a .22 and a .243. A few weeks later Mr Livet asked him if he had seen or built a silencer. Mr Eliasson said he had seen one but never built one and that it might blow up in his face. A week later at a work conversation the applicant had described a plan to him of how to build a silencer. He told the applicant that he was mad and walked away. About a week later he saw the applicant with silver hollow tube about 8 to 10 cm long. He said, "Nice silencer". The applicant replied, "Yeah, do you think it will work". Mr Eliasson replied, "You're an idiot, it is likely to blow up in your face". He said, "No, it is going to work".
About two weeks later he called Mr Eliasson and another (unnamed) ANL employee around the back of the shed at work, out of view from the CCTV cameras. He opened the passenger side door of his utility and had both of his rifles lying on the front seat in open rifle bags. He invited them to pick up the guns and see how light they were, but they both declined. He left both of the rifles in the front seat of the vehicle for the rest of the day while at work. That was the last time Mr Eliasson saw the rifles.
Mr Eliasson declined to give oral evidence in open hearing and would only testify if granted confidentiality, otherwise he would withdraw the statement, although it was already in evidence as part of exhibit R2 and the applicant knew its contents. As Mr Kable would not have been able to cross-examine if the hearing were closed, there seemed little point in calling Mr Eliasson to give oral evidence and it was agreed that the statement would be received as unsworn evidence.
Applicant's submissions
On behalf of the applicant Mr Kable lodged two sets of written submissions and also made oral submissions on the adjourned date. He said the applicant is a well-presented young man who speaks well, and while having only a limited tertiary education and a rough start to adulthood, has managed to become a well-mannered and successful young man. He holds a management position with Letchford Engineering, has recently married and has bought his own house.
Being raised on farms, he had been familiar with firearms until moving to Sydney for high school. After leaving school he "started mixing with the wrong crowd". He acknowledges his court criminal record and the choices he made early in his adult life, but most of that record occurred before he turned 21, or shortly afterwards, and he greatly regrets it. His last court appearance was in 2003, for 2001 matter and his last driving offence was in 2008. He has never been sentenced to a jail term.
Because of the lapse of time, his changes of address and positions, he was somewhat vague about the actual dates. For that reason he attended Mona Vale police station to enquire about the length of time that had elapsed since his conviction, explaining that he wished to make a firearms licence application. He was told by the officer on duty that he was "good to go" for such an application and did so. He did not know the information he was given was incorrect by nine months, and had no reason to know. As regards the reported "Graham Hart" alias, he acknowledges that they once were friends but have lost contact. Mr Kable raised the possibility that rather than the applicant using an alias, the reverse could be true, and that Mr Hart had assumed Mr Livet's identity.
Mr Kable then dealt with the question whether spent convictions could be taken into account in considering whether the applicant was "a fit and proper person" to hold a licence. As the respondent elected not to proceed on that ground at the hearing, however, the point is no longer relevant.
The applicant submitted that public safety would not be compromised by restoring his licence. He had never shown any violent behaviour or aggressive tendencies towards any person and gave evidence in a calm manner. The text messages sent anonymously by Mr Buddle, a manager at ANL, confirmed his evidence that the environment there was hostile to him. Nevertheless, he never retaliated and there was no suggestion that he was violent towards anyone there. Claims that he was an arrogant and demanding supervisor showed that there was a fine line between being a perfectionist who demands the best and supervises work closely, and an employee who feels he is being intimidated or bullied, particularly when no such staff member actually provided evidence. . Any testimony from Mr Ferguson on that point was only hearsay.
Mr Ferguson had said that the applicant confronted him after his guns had been removed by police, but other than a few cross words that could be heard at any workplace on any day, there were no acts that would constitute violence or the threat of violence. The main police objection was the taking of a firearm or firearms to work. The applicant's evidence was that he was on his way home from the gun shop with his new rifle and simply stopped at his workplace to collect the tools he needed to finish installing his gun safe. There is no specific legislative requirement for the safe carriage of a class A or B firearm, and as Mr Livet had locked the bolt, magazine and ammunition in the glovebox and locked the utility, he had more than complied with the general storage provisions of s 39. The rifle never left his line of sight and there was no evidence presented that anyone else handled it within the 10 or so minutes he remained on the secured factory site where he was employed.
Mr Ferguson's evidence supported that scenario. It was the only time he saw a firearm at ANL, he was unsure of the date and could not deny that it could have been as far back as 27 November 2012. He had walked away from the scene and admitted the applicant may have only been there for a short time. He could not explain why it had taken six months to report the incident. He had not seen a firearm on the premises at any other time.
Because of his fiancée's family history in Bosnia, the applicant had good reason for not welcoming a police firearms inspection without notice while she was there.
As regards the "silencer" objection, the applicant admitted manufacturing an object that was supposed to attach to a thread already provided by the manufacturer, there was no evidence that it was in fact a silencer. The evidence was that it was simply an aluminium tube of larger diameter than the barrel, which was to screw onto the thread. At best it could be described as a flash suppressor, but if anything, putting a hollow tube on the muzzle would make the noise greater, rather than less. At all events it was never fitted and was later destroyed.
The applicant distinguished Bidas v Commissioner of Police, New South Wales Police Force [2013] NSWADT 220, which applied the "virtually no risk to the public" test when dismissing an appeal, but the applicant in that case had been convicted of a number of offences, while the applicant had no contemporaneous conviction and no substantial evidence of any wrongdoing. In Azzopardi v Commissioner of Police, New South Wales Police Force [2013] NSWADT 205, the applicant had been on a 12 month good behaviour bond but had held a licence for 13 years with no breaches of the regulations and no non-traffic criminal convictions. His background showed that it was not against the public interest for him to continue to hold a licence. A similar conclusion had been reached in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, where the applicant's record had been unblemished since a contested AVO many years before.
The Commissioner had revoked the licence primarily on the evidence of a former work colleague who admitted hostility towards the applicant. The subpoenaed evidence of damning text messages sent to the applicant after leaving ANL confirmed the widespread antipathy for the applicant there. When the applicant's house was inspected, he was found to be complying with all proper storage requirements. Evidence that was presented in closed hearing without the applicant's having the opportunity to cross-examine should be accorded little weight.
In his oral submissions Mr Kable reiterated his earlier contentions and urged that his client's error about whether 10 years had elapsed since his conviction was a genuine mistake that could well arise from the officer misreading the not altogether clear criminal history records. He had never been charged with a firearms offence. Mr Ferguson had not been clear about the date on which he saw the rifle in the applicant's utility, but could not dispute that it might have been 27 November 2012. At all times on that occasion the utility was visible to the applicant through a side door of the workshop which was probably open. Showing a gun to work colleagues was not an offence and it was clear that he was carrying the rifle in accordance with s 40 on his way home.
Kudrynski v Commissioner of Police, New South Wales Police Service [2001] NSWADT 101 was distinguishable. In that case the applicant had removed his shotgun from its apparently safe storage at his property and was carrying it in his car in a loaded condition, with his wife and daughters aboard, while on his way to Melbourne, and had made no arrangements for safe storage at his destination.
The evidence concerning rifles at work on another occasion and the silencer was vague hearsay. The evidence showed that the attachment was simply a hollow aluminium tube and not an unlawful attachment, Mr Kable said.
Consideration
To recapitulate, following the relinquishment of the "fit and proper person" objection, the four grounds on which the Commissioner seeks to uphold the revocation of the applicant's license are:
- That it is not in the public interest for the applicant to continue to hold a licence within the meaning of s 24(2)(d) of the Act and cl 19 of the Firearms Regulation 2006 because he violated s 7(1) of the Weapons Prohibition Act in that he possessed a silencer within cl 4(3) of that Act.
- That he supplied information that was false or misleading in his application for a licence.
- That he contravened the safe storage provisions of the legislation by taking one or more rifles to work to show to colleagues, whether or not he was convicted of an offence for the contravention.
- There are criminal intelligence reports or criminal information that the applicant is a risk to public safety and that his possession of a licence would be contrary to the public interest.
As the respondent submits, the last three grounds if established are also relevant to the public interest issue, besides being individually sufficient. It was agreed between the parties that when criminal convictions are "spent" within the meaning of the Criminal Records Act 1991 they may be taken into account only in connection with public interest considerations. It was also common ground that this tribunal has jurisdiction, including ancillary jurisdiction, in relation to the present application by reason of s 28 of the Civil and Administrative Tribunal Act 2013 and s 75 of the Firearms Act.
The silencer
As regards the first ground, it is an offence under s 7 of the Weapons Prohibition Act 1998 to possess or use a prohibited weapon without a permit. Section 4(1) of that Act, the definition section, states that "prohibited weapon means anything described in Schedule 1". The schedule lists several categories of weapons and then concludes with a number of "Miscellaneous articles", including anti-ballistic vests, handcuffs and, in cl 4(3), "Silencers or any other device designed for attachment to a firearm for the purpose of muffling, reducing or stopping the noise created by firing the firearm". Thus, although a silencer is not a weapon, the legislation treats it in the same way as one (see French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221 at [29], [37] - [38], [44] - [45]).
Mr Ferguson's evidence was that he had not seen the applicant with anything resembling a silencer, but had heard from others that he had made one. Mr Eliasson's unsworn statement asserted that he saw the applicant with a silver metal tube which he said was a silencer. The applicant, on the other hand, claimed that he had manufactured a plain hollow aluminium tube to use partly as a flash suppressor for night shooting and partly to cover the thread on the muzzle for cosmetic reasons, but had discarded it because he had used the wrong thread when making it. He denied ever referring to it as a silencer. Dr Thompson opined that a .22 would only produce a flash if shots were fired in rapid succession. Mr Kable very properly conceded, however, that a .22 LR rifle will never emit a flash in any circumstances.
There are some difficulties with the respondent's evidence also. Mr Ferguson's testimony on this point is purely hearsay and Mr Eliasson declined to give evidence from the witness box in open hearing, citing concerns for his safety, even though the applicant already had a copy of his statement and knew its contents. The applicant, as was noted above, has never engaged in violent or threatening behaviour towards anyone. Further, and more importantly, the only evidence from anyone who actually inspected the object is that of the applicant himself, who says it was simply a hollow aluminium tube. Mr Kable suggested that such an item might be more likely to amplify sound than silence it. Be that as it may, cl 4(3) describes a silencer as an attachment designed for the purpose of muffling, reducing or stopping noise. One would therefore expect to see evidence of some system of baffles, as in the original and much-copied Maxim silencer, or some other arrangement for reducing, however imperfectly, the report at the muzzle. An empty aluminium tube cannot, therefore, be a silencer. The applicant may well have described it as one, perhaps out of foolish bravado, but without some objective evidence that it was designed for the statutory purpose, it is not possible for the tribunal to find that it was unlawful and that its possession constituted a serious offence. I therefore conclude that the respondent has not established that there was a breach of s 7(1).
False or misleading information
The second ground relied on by the Commissioner is that the applicant supplied information that he knew to be false or misleading in a material particular in his licence application, within s 24(2)(b)(ii) of the Act. The applicant answered "no" to question H(e) in the application form he completed on 4 September 2012 (exhibit R1, Tab 5), which asks whether within the past 10 years he has been convicted of one of several classes of offences, when in fact the conviction in question had been recorded nine years and three months previously.
The applicant testified that he had visited Mona Vale police station and explicitly asked the officer on duty whether he had any convictions within 10 years because he wished to apply for a firearms licence and could not remember the exact dates. After consulting the computer, the officer had replied, "No, you're good to go". The respondent did not deny that such a visit might have occurred, but argued that because the applicant was required to report changes of address and employment during his 2-year bond, he should have remembered the hearing date.
The uncontradicted evidence is thus that the applicant made active and conscientious efforts to ascertain his true position. It is far from improbable that the duty officer mistakenly checked the charge date, which was two years earlier than the trial date, as the record entries are not conspicuously clear. The applicant's 2-year bond would not necessarily have lodged the hearing date in his mind, as he was not under a regular reporting condition. The provision requires that the information supplied be false or misleading to the licensee's knowledge. I conclude that the preponderance of probabilities weighs against a finding a breach of s 24(2)(b)(i).
Safe storage requirements
The third ground relied on is that the applicant contravened s 24(2)(b)(ii) by failing to comply with the safe keeping requirements for categories A and B firearms in ss 39 and 40 of the Act by taking his rifle or rifles to his workplace to show to colleagues and leaving it or them unsecured in his utility truck at work. The respondent said one incident occurred on 27 November 2012 (or on Mr Ferguson's evidence, perhaps as late as early January 2013) when the applicant purchased the CZ, a carrying bag and some other items from the Bankstown Gun Shop (exhibit A1). While on his way home he stopped at his workplace at Terrey Hills to collect some tools, apparently for some 10 minutes, leaving the CZ locked in his utility but with little direct visibility. There was no safe at his workplace. He offered to show the rifle to three workmates, which was concerning as he thereby made it obvious that he had a firearm, Ms Thangasami said.
The ANL depot at Terrey Hills lay, however, on the direct route from the gun shop to the applicant's place of residence. It is not disputed that he stopped at ANL for only 10 minutes, in order to collect tools that he needed for the purpose of installing his gun safe. He parked his utility in a secure area closed off by a card-operated gate, locked the rifle bolt, magazine and ammunition in the glovebox and locked the utility, leaving his new CZ on the passenger seat, which was the only place in the single-cab vehicle where it could go. He showed it to three work colleagues but it did not leave his possession. He did not move more than 10 m away from it and had it in view most or all of the time.
The respondent submitted that by stopping at ANL, the applicant had ended his journey. The firearm was no longer in the process of being "carried" within the meaning of s 40(1)(a) and therefore had to be stored in an approved locked receptacle. That proposition, however, takes an unduly narrow and artificial view of the process of carrying a firearm from one place to another. A brief stop on the way to his destination in which the licensee takes "all reasonable precautions" to ensure its safe keeping within the meaning of s 39(1)(a), does not part with possession of it to unlicensed persons and remains within close proximity to it, could not, from a practical viewpoint, be seen as ending his or her journey. Kudrynski involved a complete lack of precautions while transporting a loaded shotgun and cartridges in a car with the licensee's wife and children with no arrangements made for safe storage at the destination. The precautions taken by the applicant in this case were reasonable and likely to be effective, and were not vitiated by his showing the rifle to workmates. There is no requirement for a licensee to keep his or her gun ownership confidential.
The other event relied on in connection with safe storage rests on a paragraph in Mr Eliasson's unsworn statement of 1 July 2013. He states that he cannot remember the date but he recalls the applicant opening the passenger side door of his utility at work and showing him and another, but unnamed, employee two rifles resting on the front seat in rifle bags. Mr Eliasson does not mention seeing the CZ rifle in the applicant's utility on the day of purchase (although the applicant stated that he showed the CZ to Mr Eliasson that day), and his discussions with S/Const Millar (exhibit R2) could be interpreted as referring to that incident on 27 November rather than another one. Mr Ferguson recalled only one occasion on which the applicant showed him a rifle, that being the day on which he was taking it home from the gun shop. He had heard reports about a rifle being brought in on another day, but thought they might have referred to the earlier incident.
There is also some evidence suggesting that not all of the applicant's former work associates at ANL may be impartial witnesses. The applicant said that especially after about November 2012, the atmosphere there was extremely tense and that he was resented because he had been placed above other workers who had been there longer. He said Mr Ferguson was hostile towards him because he had instigated the demotion of Mr Ferguson's son, who also worked for the company, on the ground of poor work. Mr Ferguson said that the tension resulted entirely from Mr Livet's arrogant and intolerant manner and that his son had been employed at a different ANL site and only visited Terrey Hills. He did not say, however, whether those visits lasted an hour or a month or some other period, or whether or not his son had in fact been demoted or whether the applicant had been responsible. His evidence on that point does not, therefore, significantly contradict the applicant's.
Shortly after leaving ANL, the applicant received a number of anonymous text messages of an obscene and offensive nature, including some scurrilous references to his fiancée on the eve of his wedding (exhibit A3). Some material obtained from the telephone company on summons revealed that the sender was a Mr Craig Buddle, a manager at ANL, which tended to indicate that there was indeed a venomous atmosphere at the Terrey Hills depot and that it may not have all been the applicant's doing. That inference is reinforced by the fact that Letchford Engineering was willing to take the applicant back as an employee after he left ANL, which it would be unlikely to do if he were known as an arrogant and disruptive employee. The possibility of witness bias against the applicant therefore cannot be excluded.
Given the potentially serious nature of the contravention involved, an unsworn statement by a witness who refuses to give oral evidence or identify another witness allegedly present, and which is not altogether consistent with other evidence in the case is a fragile basis for finding that a breach of the safe storage provisions has occurred. It seems that the police, or the Director of Public Prosecutions, or both, may have reached a similar conclusion, as no charges were brought. I therefore conclude that this ground has not been established.
Intelligence reports
The fourth ground on which the respondent relies is that there are criminal intelligence reports or criminal information that the applicant is a risk to public safety and his possession of a licence would be contrary to the public interest (ss 11(5A) and 24(2)(a)). That material is in confidential exhibit CR 3 and is described in the confidential testimony of S/Const Millar. Under s 11(5B) the Commissioner and the tribunal are not required to give reasons for decision when relying on s 11(5A). It is possible to give some explanation, however, by reference to the open evidence. S/Const Millar's report (exhibit R2) when outlining the applicant's criminal history, mentions that there are 14 intelligence reports from 2001 to June 2013. They relate to drugs, steroids, drug supply, traffic offences and theft. The applicant "is also known to associate with some high risk offenders from the Northern Beaches".
It should be pointed out that most of the reports are over 10 years old, although there is a group of them in 2007. Only one of them is later than 2007, and that is dated July 2013. To some extent it may be connected with the turmoil at ANL Terrey Hills, but as it purports to be from several different sources one cannot be sure of that.
When granting the applicant's licence in November 2012, the Commissioner must have been aware of the reports and criminal history before that date but not considered them sufficient ground for refusal. The 2013 reports and the ensuing events plainly prompted the Commissioner
to take a different view. Although a tribunal will hesitate to base a decision on untested evidence of uncertain reliability, the totality of the criminal history and the other material before the tribunal make it impossible, in my view, to exclude any significant risk to public safety. Also troubling is the applicant's repeatedly claimed inability in his oral evidence to recall dramatic events in his turbulent past, including a police stop leading to a car chase and a collision with a vehicle approaching in the opposite direction. I am therefore satisfied that a case has been established under ss 11(5A) and 24(2)(a) for revoking the applicant's license on public interest grounds.
Conclusion
On the other hand, he has had a long period free of convictions, has never been sentenced to imprisonment or convicted of a firearms offence, is in regular employment, is married, has bought his own house and leads a stable and responsible lifestyle. He is well spoken of by his referees. It may be that the passage of a reasonable period of time would show that he is a responsible citizen and that the events at ANL were an aberration brought about by a variety of causes, including the attitudes of work associates. He has been without his licence for over a year now. If, for example, another year were to pass without anything untoward on his record or any evidence of undesirable associations, the Commissioner might be able to be satisfied that issuing a new licence to him would present virtually no risk to public safety. In the meantime, however, he must remain without a licence.
The decision under review is therefore 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: 17 September 2014
0
6
1