Maguire v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 210

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Maguire v Commissioner of Police, NSW Police Force [2016] NSWCATAD 210
Hearing dates:	13 July 2016
Date of orders:	22 September 2016
Decision date:	22 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	The decision of the Respondent to revoke Mr Maguire’s firearms licence is affirmed.
Catchwords:	Contravention of Firearms Act or Regulations; not in the public interest
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1987 (NSW) Evidence Act 2005 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; [1990] HCA 33 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Commissioner of Police, NSW Police Force v Fortuna [2010] NSWADTAP 51; Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 Dewar v Commissioner of Police [2003] NSWADT 115 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 Green v Commissioner of Police, NSW Police Force [2014] NSWCATAD 59 Hill v Commissioner of Police [2002] NSW ADT 218 Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 Livadaru v Commissioner of Police, NSW Police Force [2008] NSWADT 160 Loye -v- Director General, Department of Transport [2000] NSWADT 145 Lynch v Commissioner of Police [2006] NSW ADTAP 43Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153 Pantle v Commissioner of Police, NSW Police Service [2001] NSWADT 207 O'Sullivan v Farrer [1989] 168 CLR 210 Rosenboom v Commissioner of Police [2006] NSWADT 10 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Vella v Commissioner of Police [2003]NSWADT 91 Ward v Commissioner of Police [2000] NSW ADT 28 Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246
Texts Cited:	The Macquarie Dictionary; revised edition 1985, Macquarie Library Pty Ltd Sydney.
Category:	Principal judgment
Parties:	David Maguire (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: J Tyler-Stott (Respondent)   Solicitors: David Maguire (Applicant in person) Henry Davis York Lawyers (Respondent)
File Number(s):	1510540
Publication restriction:	Section 64 of the Civil And Administrative Tribunal Act 2013 applies to the material filed by the Commissioner on a confidential basis. That material is not to be released to either the Applicant or to the public.

Reasons for decision

1. This is an application by David Maguire seeking review of the decision of the Commissioner of Police to revoke his category AB firearms licence on 28 March 2015. The Commissioner’s decision was affirmed after internal review dated 2 July 2015. Mr Maguire’s application was made to the Tribunal on 19 August 2015 – outside of the usual period for seeking review. On 27 October 2015 Senior Member Montgomery effectively accepted the filing of Mr Maguire’s application out of time – enabling it to proceed.

2. The reason that the Respondent had revoked Mr Maguire’s firearms licence was that the Respondent contended that :

• the Applicant had contravened the Firearms Act 1996;

• the Applicant is not a fit and proper person to continue to hold a firearms licence; and

• it is not in the public interest for the Applicant to continue to hold a firearms licence.

Tribunal’s Power to review the decision

3. The Tribunal has jurisdiction to review the Decision pursuant to section 75(1) (c) of the Firearms Act 1996 and section 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

4. In determining the application, the Tribunal must decide what is the correct and preferable decision having regard to the material before it. The material the Tribunal may consider includes material that now exists but which did not exist at the time of the Decision and material that was otherwise not considered by the relevant administrator. See Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

5. The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator.

6. In proceedings before the Tribunal under the ADR Act, there is no onus of proof. However, when there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be to the civil standard of proof, that is, on the balance of probabilities as set out in section 140 of the Evidence Act 1995 which provides:

Section 140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

The Hearing

7. The hearing was held in Tamworth on 13 July 2016. Mr Maguire represented himself. He gave evidence to the Tribunal and was cross examined. The Tribunal heard the evidence of Mr John Wayne MacDonald who was also cross examined. Mr Terrence Jones gave evidence by telephone and was cross examined.

Documents before the Tribunal

8. The Tribunal had before it the following documents.

Documents filed by the Applicant

9. Mr Maguire had provided to the Tribunal on 7 July 2016 a number of documents. These included:

• submissions

• a statutory declaration of Mr Maguire dated 31 July 2015;

• an affidavit of Mr Maguire dated 11 December 2015;

• statutory declaration of John Wayne McDonald dated 31 July 2015;

• statutory declaration of Terrance Jones dated 31 July 2015;

• statutory declaration of Jodi Lumby dated 5 August 2015;

• statement of Jennifer Urquhart, mother of Jodi Lumby, 5 August 2015

• statement from Sgt Mark Benson dated 26 January 2016;

• 8 character references;

• Newspaper article concerning dog attacks in Beeson Road

Documents Provided by the Respondent

• Bundle of documents titled "Brief of Evidence" filed in the Tribunal pursuant to section 58 of the Administrative Decisions Review Act 1997 (ADR Act) on 9 October 2015 (Brief of Evidence); and

• Folder of documents titled "Supplementary Section 58 Documents" filed in the Tribunal on 10 June 2016 (Supplementary Brief).

• Written submissions which included confidential material.

Respondent’s confidential documents

10. The Respondent also relied upon documents of a confidential nature.

Confidential evidence and submissions

11. Section 49 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") provides that proceedings of the Tribunal are to be conducted in public, but sub-section (2) provides that the Tribunal can make an order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

12. Section 64 of the NCAT Act allows the Tribunal to restrict the disclosure of evidence received in the proceedings.

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

13. The hearing was mostly conducted openly. However the Commissioner presented some material on a confidential basis and the Applicant was excluded from that part of the proceedings under section 49.

14. The Tribunal made orders under section 64 prohibiting the publication of certain evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal. The Tribunal prohibited the disclosure to the Applicant of certain evidence given before the Tribunal, and documents lodged with the Tribunal and received in evidence by the Tribunal.

15. The Tribunal will not set out any material that was presented on a confidential basis in open reasons. Those parts of the reasons that are not to be disclosed are identified as "[not for publication]".

Respondent’s submissions

16. The Respondent made written submissions to the Tribunal which it supplemented orally at hearing.

17. The Tribunal summarises the Respondent’s submissions as follows.

18. In making the Decision, the Respondent exercised his power under section 24(2) of the Firearms Act 1996 (NSW) (Act), which confers a discretion on the Respondent to revoke a firearms licence issued under the Firearms Act 1996 in a range of circumstances.

19. The correct and preferable decision is that the Applicant's firearms licence be revoked because:

• the Applicant has contravened the Firearms Act 1996;

• the Applicant is not a fit and proper person to continue to hold a firearms licence; and

• it is not in the public interest for the Applicant to continue to hold a firearms licence.

Relevant background facts

20. The respondent relied on the following relevant background facts. The Applicant was issued with an AB Firearms Licence, on 12 December 2001 and, since that date, has renewed or re-applied for a firearms licence, as necessary. The Licence was granted on the basis that the Applicant had a genuine reason of recreational hunting / vermin control.

The 27 December 2014 Incident

21. On 27 December 2014, Police attended the property known as "Springvale" on Beeson Road, Milroy, near Gunnedah (Springvale), following a reported break and enter incident at Springvale. Springvale is a property leased by the Applicant for the use of the land. The Applicant says that he stays there occasionally and that his primary residence is at "Nardoo", 110 Ruvigne Road, Gunnedah (Nardoo) which is his and his mother's property.

22. It was alleged by Ms Jodi Lumby, a friend of the Applicant who had been staying with the Applicant at Springvale "on and off' for 8 months, that there was, on 27 December 2014, a break and enter at Springvale, and that Ms Lumby was assaulted by two men.

23. The Applicant says that when Ms Lumby telephoned him to inform him of the incident referred to above, he told her to ring the Police. However, this is inconsistent with her own telephone records.

24. The COPS event report for the reported break and enter notes that Ms Lumby told police that two intruders wearing balaclavas entered the residence and asked her "Where's the money?" and then assaulted her by punching her in the eye. The COPS event report also says that Ms Lumby told Police that she believed the two intruders to be known to her and the Applicant and that the two intruders accused the Applicant of owing them $30,000 two years earlier.

25. Ms Lumby also told Police, as did the Applicant, that a few weeks before the incident on 27 December 2014, the Applicant gave a person $3500 in cash so that "he could give his kids a good Christmas", but that since then, this person had been sending threatening texts and making threatening calls to both herself and the Applicant, demanding that the Applicant give him a further $1500. The COPS report notes that this person is a "known drug dealer."

26. In his letter of 19 April 2015 to the Firearms Registry, the Applicant says that on the morning of 27 December 2014, prior to the break-in, he left Springvale in order to, among other things, go to Nardoo to collect a rifle and return to Springvale to put down a sheep that had cancer. The Applicant says that he returned to Springvale after the break-in but prior to the Police arriving. The Applicant also says that when he arrived at Springvale after the break-in he took his rifle into the house at Springvale and laid it on the bed in the bedroom. Despite this, the Applicant also said on 27 December 2014 that he kept his HMR rifle at Springvale. Ms Lumby also later says that the Applicant kept a rifle at Springvale.

27. Following this, Sergeant Benson and Senior Constable Palmer attended Springvale at approximately 1.30pm on 27 December 2014 in relation to the reported home invasion. Sergeant Benson and Senior Constable Palmer entered the Applicant's residence at Springvale. While Sergeant Benson was inside the residence, he saw a soft rifle case laying on a bed in the Applicant's bedroom. Sergeant Benson asked the Applicant why it was there and informed the Applicant that it would need to be locked away.

28. The Applicant says that the Police then asked Ms Lumby and the Applicant to attend a Police station to make statements. The Applicant says that he told Ms Lumby to accompany the Police but that he remained at Springvale in case the intruders returned. The Applicant says that while he was waiting, he cleaned his rifle, and then put the rifle behind the cupboard.

Subsequent Police enquiries at Springvale

29. Later that day, Detective Senior Constable McGinty and Detective Senior Constable McKenzie took a statement from Ms Lumby in relation to the break-in. In her statement, Ms Lumby stated that the Applicant always kept a rifle at the house.

30. Following this, the Detectives attended Springvale. While at Springvale, Detective Senior Constable McGinty entered a bedroom with the Applicant. The Applicant proceeded to indicate that he had a firearm next to a wardrobe and reached into a space between the wardrobe and the wall to pull out a soft firearm case.

31. The Detectives subsequently conducted a recorded interview with Applicant, commencing at 5.56pm on 27 December 2014, focusing on the break and enter at Springvale (First Interview).

32. During the First Interview, the Applicant told Police that:

• he kept one rifle, an HMR, at Springvale;

• he had lived at Springvale for nearly 12 months; and

• Jodi Lumby also stays at Springvale.

33. Following the First Interview, Detective Senior Constable McGinty informed the Applicant that the HMR would be seized as it was not secured in compliance with the Act. When seizing the HMR, Detective Senior Constable McGinty also found the bolt and an ammunition magazine holding at least 5 live HMR rounds wrapped inside a red singlet stored in the pocket of the soft body carry case for the rifle. Detective Senior Constable McGinty also seized further ammunition located on a shelf in the wardrobe of the bedroom.

34. The Applicant was then asked by Detectives whether he had any other unsecured firearms or ammunition at the Springvale property. The Applicant then walked into a separate room at the opposite end of the house and returned with a container of .22 magnum rounds and some 12 gauge shot gun shells in a leather belt. That ammunition was also seized by Police.

35. In total, Police seized from Springvale:

• an HMR .17 rifle, attaching a Leupold scope, bearing serial number A683852;

• 15x12 gauge shot gun shells in a leather belt;

• 155 x .17 HMR ammunition with belt;

• 91 x .22 HMR ammunition in a plastic container.

36. The Detectives subsequently conducted a further recorded interview with Applicant, commencing at 6.34pm on 27 December 2014, inquiring into the Applicant's failure to comply with the Act (Second Interview).

37. During the Second Interview, the Applicant:

• agreed that he had not secured the ammunition found at Springvale;

• said that his safe storage address was at Nardoo;

• said that he keeps the HMR rifle with him at Springvale "all the time";

• said that he had been living at Springvale for up to 12 months;

• agreed that Ms Lumby could access the HMR he kept at Springvale;

• said that he did not have a gun safe at Springvale because he was leasing the property and therefore was unable to install a gun safe; and

• pleads with Police to return his rifle saying that "if you let me, I'll take it out, I'll put in my mother's safe, you can follow me" and, in doing so, implying that he does not usually store the HMR in his safe storage facility at Nardoo.

38. The following day, 28 December 2014, Police attended the property referred to as Nardoo to inspect the Applicant's safe storage facilities. The inspection found that the firearms stored at this address were stored in accordance with firearms legislation.

39. On 30 December 2014, the Applicant was served with a notice suspending his Licence on the basis that it was "not in the public interest" for the Applicant to have the Licence. At the time of service of the Notice of Suspension, Police also seized 5 firearms registered to the Applicant.

40. On 12 February 2015, the Applicant was charged with the following offences under the Firearms Act 1996:

• "Not keep firearm safely - not prohibited firearm/pistol" (in contravention of section 39(1)(a) of the Act); and

• "Holder of Category A or B licence not have approved storage" (in contravention of section 40(1) of the Act).

41. The Licence was revoked by letter dated 28 March 2015 which stated that the Decision was made on the basis that the Commissioner was satisfied that it was not in the public interest for the Applicant to continue to hold the Licence.

42. The Applicant sought an internal review of the Decision to revoke the Licence.

43. The Commissioner's internal review decision dated 2 July 2015 (Internal Review) affirmed the Decision to revoke the Licence on the grounds that:

44. (a)   the Applicant had contravened the Firearms Act 1996; and

45. (b)   it is in the public interest that the Licence be revoked.

46. On 19 August 2015, the Applicant filed an Administrative Review Application seeking a review of the Decision on the basis that "Police evidence is false and I have proof of that.”

The Firearms Charges

47. The Applicant was charged on 12 February 2015 with offences against the Firearms Act 1996. In particular, the Applicant was charged with:

• "Not keep firearm safely - not prohibited firearm/pistol" (in contravention of section 39(1 )(a) of the Act) (First Charge); and

• "Holder of Category A or B licence not have approved storage" (in contravention of section 40(1) of the Act) (Second Charge), On 6 November 2015, in Gunnedah Local Court, the Applicant pleaded guilty and was convicted of both charges.

48. However, the Applicant filed a Notice of Motion under section 207 of the Criminal Procedure Act 1987 (NSW) seeking a traversal of his pleas of guilty and subsequent convictions which were entered at the Gunnedah Local Court on 6 November 2015. The Applicant requested that the Court proceed to re-determine the Charges on the basis of pleas of “Not Guilty”.

49. The Applicant's Notice of Motion was granted and the matter was listed for hearing on 9 March 2016 in Gunnedah Local Court. In respect of the Second Charge, “not have approved storage” the Applicant was found guilty of an offence under section 40(1) of the Act, but not convicted, pursuant to section 10(1)(a) of the Crimes (Sentencing and Procedure) Act 1999 (NSW). The First charge, arising under section 39(1) (a) of the Act was dismissed.

48. The Respondent submitted that the First Charge under section 39(1 )(a) of the Act was dismissed, because of the Applicant's evidence that, on the morning of 27 December 2014, the Applicant had travelled from Springvale to Nardoo to collect the HMR rifle and bring it back to Springvale to use it. The Respondent submitted that this evidence is inconsistent with the Applicant's interviews on 27 December 2014 in which he said that he keeps the HMR at Springvale and had done so prior to the 27th December 2014. In the Respondent's submission, the Applicant's evidence in his recorded interview on 27 December 2014 should be preferred against the finding of the Gunnedah Local Court on 9 March 2016. This was because:

• the evidence provided by the Applicant on 27 December 2014 was collected very shortly after the events and prior to the Applicant having an opportunity to prepare for his criminal hearing; and

• the findings of the Gunnedah Local Court were made on a higher standard of proof than the Tribunal is required to be satisfied; and

• the findings of the Gunnedah Local Court, were concerned only with a breach between 5-6:30pm on the 27th of December, 2014.

51. Importantly, the Facts Sheet relating to the two Charges referred to the Applicant's failure to store ammunition, as well as the HMR, in accordance with the requirements of the Act. However the Local Court proceeded on the basis that the Second Charge did not include breaches relating to that ammunition. His Honour did, however, note that such a charge relating to the Applicant's failure to properly store ammunition could have been laid and it is reasonable to infer from the transcript that the Applicant would have been likely to have been found guilty of such a charge.

Legislative Framework

52. The Respondent referred to the legislative framework as follows.

53. Section 3 of the Firearms Act 1996 sets out the principles and objects of the Act. The underlying principles of the Act are:

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

• to improve public safety:

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

by promoting the safe and responsible storage and use of firearms, and

to facilitate a national approach to the control of firearms.

54. The objects of the Act include:

to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

to ensure that firearms are stored and conveyed in a safe and secure manner...

55. Section 24(2) of the Act sets out a number of grounds on which the Commissioner may revoke a firearms licence. Section 24(2) of the Act provides:

(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.

56. In support of his decision to revoke the Licence, the Respondent relies on sections 24(2) (a), 24(2) (b) (ii), 24(2) (c) and 24(2) (d) of the Act.

Justification for the revocation of the Licence

57. The Respondent submits that there are several grounds to justify the revocation of the Applicant's Licence, although each reason by itself justifies revocation.

58. Firstly, the Applicant contravened the Act by failing to satisfy the general requirement of taking all reasonable precautions to ensure the safe keeping of a firearm, and by failing to comply with the mandatory requirement of a Category AB licence of storing a firearm in a locked receptacle of an approved type.

59. Secondly, the Applicant has demonstrated a poor attitude in relation to the principles and objects of the Act, as well as a disregard for public safety. The Respondent submits that, as a result, the Applicant is no longer a fit and proper person to hold a firearms licence.

60. Thirdly, the Respondent submits that it is in the public interest for his licence to be revoked and, relevantly, that the behaviour and actions of the Applicant is such that the Tribunal cannot be satisfied that there is virtually no risk to public safety in allowing the Applicant to hold a licence.

Revocation of licence for contravention of the Act or regulations - section 24(2) (b) (ii)

61. The power to revoke a licence under section 24(2)(b)(ii) of the Act arises in the event that the holder of a firearms licence contravenes the Act or Firearms Regulation 2006 (NSW) (Regulation), whether or not the licensee is convicted of an offence for the contravention.

62. Part 4 of the Act sets out certain requirements for the safe keeping of firearms.

63. Section 39 of the Act sets out the general requirement that:

(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.

64. Section 40 of the Act imposes certain requirements in relation to the safe storage of firearms. Section 40(1) of the Act provides that:

(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:

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,

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

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

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,

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

65. The Applicant contravened the Act by:

• failing to adhere to safe keeping provisions by leaving his rifle unattended and unsecured in his bedroom at Springvale; and

• failing to comply with the mandatory requirements of his Licence to ensure safe storage of his firearm and ammunition by failing to:

ensure that when a firearm is not being used or carried, that it was stored in a locked receptacle of the approved type; and

ensure that ammunition for a firearm is stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm.

66. Instead, the Applicant, as conceded by the Applicant in the First Interview and Second Interview:

• kept his HMR rifle unattended and unsecured at Springvale, including in his bedroom, behind a cupboard and on his bed, in contravention of sections 39 and 40 of the Act; and

• left ammunition unattended and unsecured at Springvale in contravention of section 40 of the Act.

67. The Respondent referred to statements made by Mr Maguire in his interviews with Police on 27 December 2014. The transcript of the First Interview conducted with the Applicant by the Detectives on 27 December 2014 includes the following:

Q137   Do you keep any firearms here?

A   I've got one. Here.

Q138   Yeah?

A   Yeah.

Q139   Which one is that?

A.   The HMR.

68. The HMR is the rifle which police seized on 27 December 2014. Further, when asked about whether the HMR had been accounted for, post-incident, and whether he knew where it was and who had it, the Applicant replied:

"Oh yeah. I showed it to you mate here, didn't I?'... it's pretty handy. I've shot a fox right there. Another one over there. I used to set the spotlight up out here..."

69. In the Second Interview, the Applicant answered a number of questions in relation to the HMR as follows:

Q56   ... in our previous conversation you told me that you keep that one here with you, is that correct?

A   Keep it with me all the time, I did.

Q57 Yeah?

A   I did say that.

Q58 Right.

A.   And, and yeah I do... And I do not feel happy about having to go to court I really don't want to go to court. I've been to court enough and I did lie to you there but urn, it's always right where I'm handy to it and urn, no one would get it because if I'm not there mate, there, the magazine, or bolt is with me. You know? There's no way in the world anyone could get it. It was with me when they turned up today.

70. The Respondent submitted that the extracts of the First Interview and Second Interview set out above demonstrate that the Applicant has left his rifle at the Springvale property, unattended and unsecured, on more than one occasion.

71. In further support of the submission above, Ms Lumby told Police on 27 December 2014 that the Applicant kept a firearm at the Springvale property.

72. In the First Interview, the Applicant also indicated that he did not have safe storage facilities at Springvale, stating, when asked why his firearms are not stored at Springvale (when he lives at Springvale):

"I didn't want to pull it [the safe storage] up and bring it all the way out here and put it in and then find out the next week that I'm going to leave here, you know."

73. While the Applicant, by this statement, appears to have an understanding of what the safe storage requirements are under the Act, he blatantly disregards his obligations to ensure the safe keeping of firearms (and ammunition) by keeping an unsecured rifle and ammunition at the Springvale property without the requisite locked receptacle at this property.

74. In the Second Interview, the Applicant acknowledged that Ms Lumby sees him with the rifle "all the time", and could get access to the rifle. The following was said during the Second Interview:

Q26 At the police station today Jodi mentioned to us you keep a firearm here.

A   Yeah, well.

Q27 O.K. And she has knowledge if [sic] it being here?

A   Yeah, she, she sees me with it all the time.

Q28 O.K. But do you also understand that with it not being appropriately stored that she could get access to that?

A.   Even if she did get hold it she wouldn't be able to use it because

I've always got the bolt and the magazine hidden.

Q29   Today it wasn't –

A   It's always –

Q29   - because when I've seized the firearm –

A   Well it wasn't.

Q29   -in the firearm with the firearm in the gun case.

A   That is because you were here

75. Not only did Ms Lumby have access to the firearm (or any other person who may come upon the unsecured firearm), the bolt and the magazine were found within the rifle case, along with ammunition. In the Respondent's submission, storing a firearm in this manner, particularly with ammunition, is in contravention of sections 39 and 40 of the Act and contrary to the principles and objects of the Act.

76. While the Applicant in his letter to the Firearms Registry dated 19 April 2015 indicates that the reason he had the rifle with him at Springvale was to destroy a sheep with a cancerous nose, the Respondent submitted that this version of events should not be accepted given that it is at odds with the statements made by the Applicant in his interviews on 27 December 2014. The Applicant's letter of 19 April 2015 was written approximately 5 months after the incident. The more accurate explanation of events on 27 December 2014 is that provided by the Applicant on 27 December 2014.

77. In the Respondent's submission, there is clear evidence that the Applicant lived at the Springvale property, kept a rifle at the Springvale property, kept ammunition at the Springvale property and did not have any approved firearm or ammunition safe storage facilities at the Springvale property. Therefore the Tribunal must be satisfied that the Applicant contravened the Act on 27 December 2014.

78. The significant and real risks to public safety that the Applicant's contraventions of the Act created were exemplified by and manifested on 27 December 2014 when the Springvale property was subject to an alleged break and enter. It is conceivable, and indeed a very real risk, that intruders could have stolen the unsecured rifle and/or ammunition. In fact, even if the Tribunal accepts that the Applicant kept his firearm with him on 27 January 2014 (sic), there were still 3 different calibres of ammunition lying around the Springvale property.

79. The Respondent referred to the matters of Dewar and Rosenboom as providing comparators to Mr Maguire’s. In Dewar v Commissioner of Police [2003] NSWADT 115, the applicant contravened safe storage obligations by leaving a 0.22 magnum rifle unattended in his vehicle. A young person stole the rifle from the vehicle and used that rifle to shoot cattle on the outskirts of town after dark. The Administrative Decisions Tribunal found that there was a "legitimate concern in relation to public safety." and upheld the Commissioner's decision to revoke the applicant's licence.

80. In Rosenboom, see Rosenboom v Commissioner of Police [2006] NSWADT 10, the Applicant's son gained access to the Applicant's unsecured firearm and unsecured ammunition and committed suicide by shooting himself with the firearm. The ADT affirmed the Respondent's decision to revoke the applicant's licence.

81. In Rosenboom v Commissioner of Police [2006] NSWADT 10 Judicial Member Montgomery stated that:

the most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences. Judicial Member Montgomery also noted that this principle was the intention of the legislature and referred to the Second Reading speech noting that:

The Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996 (at page 3562):

"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 licensed 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."

82. Additionally, the Attorney General stated:

"Legislation should have the effect of making failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms."

83. Mr Maguire had left his firearm and ammunition unsecured and unattended in contravention of sections 39 and 40 of the Act. In the Respondent's submission, while the Applicant's firearm and ammunition was not stolen, there was a considerable and real risk for this to occur, given the evidence that the Applicant regularly kept his HMR rifle at the Springvale property which did not have safe storage facilities. In these circumstances, the Tribunal should, adopting similar reasoning to that adopted in Dewar v Commissioner of Police [2003] NSWADT 115 and Rosenboom v Commissioner of Police [2006] NSWADT 10, uphold the Respondent's decision to revoke the Licence.

Not Fit and Proper

Revocation of licence if the Commissioner is of the option that the licensee is no longer a fit and proper person to hold a licence - section 24(2) (c)

84. The power to revoke a licence under section 24(2) (c) arises if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

85. The Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence given:

• his poor attitude towards his obligations and responsibilities in relation to his Licence; and

• his character and association with persons who are not fit and proper persons.

86. The Act does not include a definition of "fit and proper", however, the Tribunal has considered the issue of "fit and proper" under the Act on a number of occasions,79 referring to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; [1990] HCA 33.

87. In Australian Broadcasting Tribunal v Bond, 80 the High Court of Australia, in discussing the concept of a "fit and proper" person, Chief Justice Mason explained at 380:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

88. Toohey and Gaudron JJ said at 380:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

89. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, the Supreme Court of South Australia said at [76]:

"In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

90. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]:

Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

91. The Respondent submitted that the Applicant’s character was relevant to whether or not he was fit and proper person to hold a firearms licence. The Respondent referred to the applicant’s extensive criminal history as set out in the bail report dated 1 October 2015. The Respondent acknowledged however that the significant majority of the record related to events that were not recent.

Respondent’s confidential submissions

92. The Respondent sought and obtained an order under sub sections 64(1) (c) and (d) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the confidential submissions that follow.

93. [Not for publication].

94. [Not for publication].

95. [Not for publication].

96. [Not for publication].

97. [Not for publication].

98. [Not for publication].

99. [Not for publication].

Not in the Public Interest

Revocation of licence for any reason prescribed by the regulations – section 24 (2) (d) public interest

100. The Respondent submitted that the case law demonstrated that public interest should be an inherently broad concept giving the Respondent the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. The discretion should be exercised in a way which promotes the principles and objects of the Firearms Act 1996. The principles and objects confirm that firearm possession and use is a privilege, conditional upon the overriding need to ensure public safety. The public’s right to safety must outweigh an individual’s privilege to possess and use a firearm. Where there is a possibility of a threat to public safety, the Tribunal had recognised that before it interferes in a decision to revoke a licence, it must be satisfied that a person would not pose a risk to public safety if the person had access to firearms.

100. The Applicant’s failure to store his firearms and ammunition in accordance with the Act and failure to take reasonable precautions in relation to safekeeping caused a significant risk to public safety. His contravention of the Act demonstrated a lax attitude towards strict safe storage requirements mandated by the Act. The Tribunal cannot be satisfied that there is virtually no risk to public safety

Respondent’s confidential submissions in relation to public interest

102. [Not for publication].

103. [Not for publication].

104. The Respondent submitted that the Tribunal could not be satisfied that there was virtually no risk to public safety if Mr Maguire were to retain his licence. Therefore it was contrary to public interest to allow Mr Maguire to retain his firearms licence.

Summary of Respondent’s submissions

105. The Respondent submitted that the revocation of the licence was separately and cumulatively justified on the basis that:

• the applicant contravened the act on at least, 27 December 2014;

• the applicant is not a fit and proper person to hold a firearms licence;

• it is not in the public interest for the applicant to retain the licence as the Tribunal cannot be satisfied that there would be virtually no risk to public safety if the applicant retained the licence; and

• if the applicant were to apply for a firearms licence, the Respondent would refuse an application pursuant to section 11 (5A) of the Act.

106. The Respondent submitted that even if Mr Maguire considers that he needs his licence, the Tribunal should not shy away from exercising its discretion adversely towards him in that he may suffer hardship and/or inconvenience. See Hill v Commissioner of Police [2002] NSW ADT 218

The Applicant’s Case

107. Mr Maguire relied on the documents set out above, his own evidence and that of Mr McDonald and Mr Jones.

Mr Maguire’s evidence

108. Mr Maguire referred to his previous statements, gave oral evidence to the Tribunal and was cross examined. Mr Maguire’s evidence was that on 27 December 2014 he had gone to his mother’s property at Nardoo to pick up a stored rifle. He intended to return to Springvale to shoot an ill sheep. While he was in transit he received a call from Ms Lumby saying that there had been a home invasion. He returned to the Springvale property, entered the house and put the rifle on his bed. 2 police officers arrived. One of the officers asked him what the rifle was doing on the bed and advised him to put it away. He had the bolt in his back pocket and the magazine in his top pocket.

109. Mr Maguire stayed at the property while the police took Ms Lumby into town to make a statement. Mr Maguire thought he should be there should the intruders return and to await the detectives who would be attending later in the day. Mr Maguire told the Tribunal that he then put the rifle behind the cupboard while he was waiting at the property.

110. He did not leave the property. It had been too late to go and find the sheep. When the detectives came to the property in the afternoon, the detectives became aware that Mr Maguire had placed the rifle behind the wardrobe.

111. Mr Maguire agreed that there was ammunition at the Springvale house on 27 December 2014. He had brought a bowl of mixed ammunition there on the day to tidy it all up. He was asked under cross examination why he had brought with him the .15 shotgun shells which were fairly distinguishable. He said “I don’t know - I wasn’t very well that day and I wasn’t thinking clearly.”

112. Mr Maguire told the Tribunal that at that time he was dividing his time between Springvale and Nardoo. It is about 28 km from Nardoo to Springvale and takes about half an hour to drive. He had not installed firearms storage at the Springvale property because he was renting it and he did not keep his firearms at the Springvale property. Mr Maguire said he had stored all of his ammunition in the bottom of the storage safe at Nardoo. He had since brought a new safe to install at the Springvale property.

113. He told the Tribunal that he uses his firearms to deal with stock predators such as foxes, wild dogs and pigs. Since he had been without his firearms Mr Maguire stated that he had lost stock to feral animals such as foxes and dogs. He had lost around 20 lambs to foxes each year. He had been obliged to call the vet to put down a bull that had broken a hind leg. He had asked a mate to put down a horse.

114. Mr Maguire denied, as had been alleged to police by Ms Lumby, that he kept a firearm at the Springvale property at all times. He said he always kept his firearm with him. He told the Tribunal that even if Ms Lumby had got hold of the firearm, he always keeps the bolt and the magazine hidden away. She would not be able to use it. He does most of his shooting in the early morning. He denied ever having set up the spotlight at Springvale.

115. Mr Maguire said that Ms Lumby had stayed at Springvale for about eight months. He had not seen her in about 12 months. He said that Ms Lumby was a completely unreliable witness. Jodi Lumby’s allegation that there had been a home invasion was a pack of lies. It was Jodi who had stolen his money and medication.

116. He had given $3500 to Peter McLennan who was the brother of a friend so that his kids could have a good Christmas. He denied knowing that Mr McLennan was a drug dealer.

Statutory Declaration of John Wayne McDonald 21 July 2015

117. John Wayne McDonald is the Applicant’s cousin. He provided a statutory declaration dated 21 July 2015. He gave evidence to the Tribunal and was cross examined. He had known Mr Maguire all of his life. He had resided at Springvale for approximately 3 years. He had spoken to Mr Maguire by telephone on the morning of 27 December 2014 from hospital and confirmed that Mr Maguire had stated

• he was unwell on the day;

• he had taken a firearm from Nardoo to Springvale to shoot a sheep with a facial tumour.

Mr McDonald stated that Mr Maguire never kept firearms at Springvale overnight and that he was compliant in gun management and storage. He stated that Mr Maguire only ever brought a firearm to Springvale for the purposes of undertaking farming and animal management. He had witnessed Mr Maguire to keep the bolt separate when the gun was not in use. He confirmed that Jodi Lumby no longer lived at the property.

Statutory Declaration of Terrance Jones 31 July 2015

118. Mr Jones lives in Gunnedah. He is the Applicant’s stepbrother. He provided a statutory declaration dated 31 July 2015. He gave evidence before the Tribunal by telephone and was cross examined. He stated that on 27 December 2014 he had been at Nardoo. Mr Maguire arrived there and told him that he had come to pick up a rifle in order to shoot a “cancered nosed sheep”.

Character References

119. Mr Maguire provided letters from:

• Bill Syphers dated 5 November 2015,

• David Syphers dated 19 November 2015,

• Peter Tull dated 7 December 2015,

• Tony McCarthy and Erin McCarthy dated 18 November 2015,

• John Devine, undated,

• Lenny Caulfield, dated 6 December 2015,

• Samuel Plevey, undated; and

• Daniel Rowsell, undated.

120. Generally speaking, the references refer to Mr Maguire’s good character, his responsibilities in managing rural properties and the need for firearms to defend livestock against feral animals. The Tribunal notes that the references did not refer to the firearms charges nor to the firearms licence revocation.

Applicant’s written submissions dated July 2016.

121. Mr Maguire provided written submissions dated 13 July 2016. The Tribunal summarises those submissions as follows

122. Mr Maguire stated that the police reliance on the criminal proceedings as justifying the revocation of his firearms licence was inappropriate because of his successful challenge of his convictions in March 2016.

123. If the Tribunal were to consider all of the material and the circumstances in which the matters arose, the public would not be at risk if he were granted a firearms licence. Mr Maguire contended that he was a fit and proper person to hold a firearms licence.

124. It was erroneous for the police to rely on the material facts set out in the internal review. He had been found not guilty of the storage matter under section 39 and no conviction recorded under section 10(1) (a) of the Crimes (Sentencing Procedure) Act 1999. He did not have a relationship with Ms Lumby and this was supported by Ms Lumby’s mother in her letter dated 5 August 2015.

125. Mr Maguire pointed out that he had not been subject to mandatory revocation of his firearms licence – it had been a discretionary decision. The discretion should be exercised in his favour.

126. His previous criminal history had not been considered relevant when he had been granted firearms licences in the past and should not be a bar to him having a firearms licence again now. The record of his criminal history was not good but it was a long time ago. A firearms licence had been issued to him since that time. He was now a reformed character.

127. He had a legitimate need for a firearms licence and it was part of his humane dealings with animals on his property.

128. The first police officers who had attended Springvale on 27 December 2014 had seen his firearm lying on the bed and did not consider it necessary to charge him. He had put the firearm away as he had been advised by the attending police. He had not sought to conceal the firearm from the detectives who later attended the property.

129. Mr Maguire submitted it was in the public interest for him to have a firearms licence because he is a primary producer. There are wild dog and fox attacks inflicting harm on his livestock. He needs to be able to deal with these.

130. He contended that he is fit and proper person to hold a firearms licence. He is on workers compensation for an injury suffered at work but he is continuing to undertake a productive role in society as a primary producer. He considered that the charges had arisen from him helping a friend. He was not engaged in a criminal pursuit. He had been intending to use a firearm in a legal manner.

131. Mr Maguire noted that firearms requirements had changed considerably since he had first started using firearms. He had not been guilty of any firearms offence since being issued with a firearms licence. He had been punished by the loss of his firearm licence. He had lost stock to predators and he had had to pay the costs of having animals put down.

132. Mr Maguire referred to a number of cases previously decided by the Tribunal in which the Tribunal had exercised its discretion so that the applicants had their firearms licence restored to them even though they may have erred in relation to firearms storage requirements or have presented doubts as to whether they were fit and proper. In his own circumstances he was found not guilty of the section 39 firearms charge. The charge of “not having secure storage” (at the Springvale property) was dismissed without conviction under section 10 (1) (a) of the Crimes (Sentencing Procedure) Act 1999. See the matters of Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153; Commissioner of Police, NSW Police Force v Fortuna [2010] NSWADTAP 51; Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246; Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24; Keane v Commissioner of Police, NSW Police [2008] NSWADT 68; Pantle v Commissioner of Police, NSW Police Service [2001] NSWADT 207 and Green v Commissioner of Police, NSW Police Force [2014] NSWCATAD 59

Tribunal’s Findings of fact

Findings about contraventions of the Firearms Act 1996

133. The Tribunal is satisfied that Mr Maguire brought the HMR firearm to Springvale on 27 December 2014. This is consistent with the evidence given by Mr McDonald and Mr Jones that Mr Maguire had gone to Nardoo to retrieve a firearm and take it to Springvale. Mr Maguire placed the rifle on his bed at Springvale to discuss the home invasion with Ms Lumby. The Tribunal finds that after he was told by a police officer who attended Springvale to put the rifle away, Mr Maguire placed the rifle with magazine and bolt in a bag between a cupboard and a wall while he waited for Detectives to come to the house. The Tribunal is satisfied that Mr Maguire was not attempting to conceal the firearm from the Detectives who attended.

134. The Tribunal notes that the specific wording of the charge under section 39 (1) (a) was:

Not keep firearm safely – not prohibited firearm/pistol

Between 5.00pm-6.30pm on 27/12/2014 at Milroy

Did not take all reasonable precautions to ensure that a firearm was safely kept….

135. Mr Maguire was found not guilty under section 39 (1) (a) of having failed to take reasonable precautions to ensure that a firearm was safely kept on 27 December 2014. In finding Mr Maguire not guilty of this charge the Magistrate made the following relevant comments:

“In respect of the first matter the safety I do not think the prosecution in my view cannot prove it beyond reasonable doubt because he has taken reasonable precautions, he is there with it….”

And

“..what I have done is I have found that the first offence which is the most serious, the not keep firearm safe that in all the circumstances you were keeping it reasonably safe but the problem was whatever you went out there to do you were not doing so you needed to then store it and that is why it is important to have a gun safe at a place where particularly for you and where you have got a property and you are going to be using it all the time because when you’re not using it, it has got to be stored and for you it means you have got to drive all the way from Springwood to Nardoo if that was the property so lesson to be learnt. Make sure you follow the legislation to the letter next time.”

136. The Tribunal understands from the Magistrate’s comments that the Magistrate accepted that Mr Maguire’s placing of the firearm in a bag behind the bedroom cupboard from the afternoon to the evening of 27 December 2014 did not constitute failing to take all reasonable precautions to ensure that a firearm was safely kept.

137. The Respondent submits that the Tribunal should find that Mr Maguire did contravene this requirement both on 27 December 2014 and at other times when he had a firearm at Springvale. Ms Lumby was not called to give evidence – so her statement to this effect could not be tested. Mr Maguire told the Tribunal he only brought a firearm to Springvale at any time to use it in farming practices. This is supported by Mr McDonald, who has lived at Springvale for 3 years.

138. Mr Maguire has, however, given conflicting versions about whether he has kept a firearm at Springvale. In earlier interviews Mr Maguire agreed that he did have firearms at Springvale overnight. His evidence to the Tribunal is that he did not.

139. The Tribunal considers that Mr Maguire’s earlier statements to police who attended at Springvale on 27 December 2014 that confirmed he had kept a firearm at times at Springvale are to be preferred to his own subsequent denial and that of Mr McDonald. These earlier statements are to be preferred as they are consistent with ammunition being found at Springvale on 27 December 2014 as well as confirmation that Mr Maguire had set up the spotlight at night. Mr Maguire had also stressed in his evidence the problem presented at Springvale by predatory foxes, pigs and wild dogs. On the balance of probabilities Mr Maguire would have had a firearm at Springvale at necessary times to deal with these predators.

140. The Tribunal is satisfied that on the balance of probabilities that Mr Maguire has had a firearm at Springvale when it is neither being carried nor used. As there is no storage at Springvale it is probable that Mr Maguire has, at these unspecified times, been in breach of section 40 – failing to store his firearm. The Tribunal is satisfied that on the balance of probabilities at these times he has been in breach of the requirements under section 39.

141. The Tribunal is satisfied from Mr Maguire’s evidence before the Tribunal that there was ammunition left insecurely at Springvale, some of which may have belonged to a previous tenant. The Tribunal also heard from Mr Maguire in his evidence to the Tribunal, that he stored ammunition in the lower part of his storage box at Nardoo which is also a contravention of the Firearms Act 1996.

142. The Tribunal is satisfied on the balance of probabilities that Mr Maguire has been in breach of sections 39 and 40 at unspecified times at Springvale. It follows that Mr Maguire has been dishonest in his evidence before the Tribunal when he has denied to the Tribunal that he had kept firearms at Springvale.

143. The Tribunal is satisfied from the evidence of Mr McDonald and Mr Maguire that Ms Lumby no longer resides at Springvale.

Findings about revocation for contravention of Firearms Act or Regulations

144. The Magistrate noted that Mr Maguire could also have been prosecuted for breaches in relation to the ammunition found unstored at Springvale. Even so the Magistrate viewed Mr Maguire’s behaviour and the outcome as a lesson for Mr Maguire. Some 6 months have elapsed since this finding. It is 21 months since Mr Maguire has had possession of firearms. Mr Maguire was adamant before the Tribunal that he would not be in breach of the firearms provisions in the future. In these circumstances while satisfied that Mr Maguire has been in contravention of the provisions of section 39 and 40 at unspecified times, the Tribunal considers on balance that it should not exercise its discretion on this basis to affirm the revocation of his firearms licence.

145. This Tribunal has before it the fact of contraventions of storage provisions and that Mr Maguire has on the balance of probabilities had firearms and ammunition at Springvale where the firearms have not been stored lawfully. The Tribunal is satisfied from Mr Maguire’s evidence before the Tribunal that he understands his storage and safety obligations in relation to firearms. The fact of these contraventions alone would not cause the Tribunal to revoke Mr Maguire’s firearms licence

Findings about whether Mr Maguire is fit and proper

146. In FD v Commissioner of Police, Judicial Member Molony considered fitness and propriety for firearms licensing involved an assessment of the person’s “knowledge, honesty and ability” in relation to the role. The role before the Tribunal here is that of holding a firearms licence.

147. It would appear that Mr Maguire has at all times been aware of firearms requirements – including the need to have secure storage when a firearm is not being carried or used. This is apparent from the contents of his police interviews and his statements to the Tribunal.

Character references

148. The Tribunal has considered the character references provided by Mr Maguire. Some of the character references refer to Mr Maguire’s appropriate management of firearms. There has been no evidence before the Tribunal that places Mr Maguire’s ability with his firearms in question.

149. The Tribunal refers to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44, in which the Tribunal gave less weight to references which did not contain the referee's knowledge of the offences of which the Applicant was accused. The character testimonials comment positively on Mr Maguire’s character. However they do not disclose that any of the writers were aware of the details of the criminal matters or the revocation of Mr Maguire’s firearms licence. The Tribunal gives the testimonials little weight as to whether Mr Maguire is fit and proper to hold a firearms licence.

150. Mr Maguire’s criminal history ranges from the age of 16 to 35. He is now 62. It has been some time since he was convicted of offences. His criminal history was not regarded as a bar to him holding a firearms licence more recently. The Tribunal notes he was refused a firearms licence some 12 years prior to applying for his most recent licence. However this was not explored during the hearing. The Tribunal does not find that Mr Maguire’s criminal history is sufficient in itself for him to be considered not fit and proper to hold a firearms licence.

148. Mr Maguire referred to a range of cases in which the Tribunal decided that an Applicant should hold a firearms licence, despite contraventions or lacking in fitness and propriety. The Tribunal notes that each of these cases were determined on the basis of the Tribunal’s analysis of the facts of the individual case. So this is also the task for this Tribunal.

149. The Tribunal notes the different versions given by Mr Maguire of how he had kept his firearm provided to the police in his first and second interviews, to the Local Court and now to this Tribunal. The Tribunal is satisfied that Mr Maguire has not been honest with the Tribunal about having kept firearms at Springvale.

150. This lack of honesty with the Tribunal causes the Tribunal to consider that Mr Maguire is presently not fit and proper to hold a firearms licence. Mr Maguire may however in the future be able to present evidence that indicates he accepts his error in this regard and that he should again be issued with a firearms licence.

151. [Not for publication].

152. [Not for publication].

153. [Not for publication].

Tribunal’s findings – Is licence contrary to Public Interest?

157. A test in relation to whether the Tribunal should exercise its discretion to revoke a firearms licence is whether the Tribunal is satisfied there is virtually no risk to the public. See Ward v Commissioner of Police [2000] NSWADT 28.

158. The Macquarie Dictionary definition of “risk” is :

“exposure to the chance of injury or loss; a hazard or dangerous chance”   

159. The Tribunal has found that Mr Maguire has on the balance of probabilities been in contravention of sections 39 and 40 of the Firearms Act 1996 in keeping firearms at Springvale.

160. The Tribunal is satisfied that Mr Maguire has been dishonest with the Tribunal in his evidence about keeping firearms at Springvale. This places in question his fitness and propriety to have a firearms licence.

161. [Not for publication].

162. The Tribunal notes that sub sections 11 (5A) and 11 (5B) of the Firearms Act 1996 provide that:

11(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.

11(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).

163. The Tribunal notes that section 24 (2) of the Firearms Act 1996 provides that

“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,”

164. [Not for publication].

165. Taking into account the provisions of sections 11(5A) and 24(2)(a) of the Firearms Act 1996 the Tribunal exercises its discretion to find that Mr Maguire’s firearms licence should be revoked on these grounds.

166. The Tribunal does not agree that individually each of the Respondent’s cited grounds justifies the revocation of Mr Maguire’s firearms licence. However, the Tribunal is satisfied on the balance of probabilities that cumulatively the factors present an exposure to the chance of injury or loss to the public. There is a risk to public safety in these circumstances. The Tribunal is satisfied it is not in the public interest for Mr Maguire to hold a firearms licence.

Decision

167. The decision of the Respondent to revoke Mr Maguire’s firearms licence 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

Amendments

26 September 2016 - Corrected date of orders and date of decision to 22 September 2016.

Decision last updated: 26 September 2016