Martin v Commissioner of Police

[2022] NSWCATAD 228

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Martin v Commissioner of Police [2022] NSWCATAD 228

Hearing dates:

23 May 2022

Date of orders:

7 July 2022

Decision date:

07 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

(1) Decision under review set aside.

(2) A category ABH firearms licence is to be issued to the applicant.

(3) A certificate under s 128 of the Evidence Act is given to the applicant and to Mr Ian McBain in respect of their evidence relating to the working model cannon fabricated by the applicant.

Catchwords:

LICENSING – firearms – licence revocation – public interest – certificate under s 128 of the Evidence Act.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16;

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50;

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

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218;

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

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368;

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97;

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

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

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;

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

Category:

Principal judgment

Parties:

Peter Martin (Applicant)

Commissioner of Police (Respondent)

Representation:

Solicitors:
Solve Legal Pty Ltd (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/00179353

Reasons for decision

1. The applicant Mr Peter James Martin applied to this tribunal on 22 June 2021 for review of a decision by the respondent Commissioner taken on 10 August 2021 to revoke his category ABH firearms licence pursuant to the Firearms Act and the Firearms Regulation.

2. The licence had been issued on 22 April 2018, to expire on 22 April 2023, but was suspended on 9 April 2021 and revoked on 19 May 2021. Mr Martin applied for an internal review of the decision on 3 June 2021, which on 10 August 2021 affirmed the revocation of his licence.

3. The applicant is aged 77 and has held a licence for long arms for over 24 years and for category H firearms since 19 April 2010. The reason given for his AB licence was recreational hunting/vermin control, and for the category H licence, sport/target shooting.

4. The applicant’s licence was suspended on 9 April 2021 on the basis of a police event report on that date, No. E90567068, which expressed concerns raised regarding his behaviour and comments towards a member of the public concerning firearms while in a rural retail store, and also concerns touching matters of mental health and possible alcohol abuse, which the applicant denied. There was also information suggesting the possession of a working model of a field gun and a failure to comply with participation requirements in relation to target shooting.

Applicable legislation

5. Section 24(2) of the Firearms Act sets out a number of grounds on which a firearms licence may be revoked, including s 24(2)(d), which provides that a licence may be revoked “for any other reason prescribed by the regulations”.

6. Clause 20 of the Firearms Regulation 2017 provides that “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

7. The issue in this application is thus whether it would be contrary to the public interest for the applicant to continue to hold a firearms licence.

The evidence

8. The respondent did not call any oral evidence, but relied on documentary material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant and his other witness.

Mr Peter Martin, applicant

9. The applicant tendered an affidavit sworn on 5 November 2021 (exhibit A1) in which he stated that he has held a firearms licence for approximately 24 years and holds records of his applications and re-applications. He has held a variety of firearm licence categories over the years, having originally acquired a licence in for the purpose of vermin control. That consisted mainly of shooting rabbits, pigs, foxes and other feral animals.

10. On or about 14 October 2001, he moved from Tweed to Glen Innes and in 2004 joined the Emmaville SSAA (Sporting Shooters’ Association of Australia) rifle and pistol range for target shooting at Glen Innes. On or about 24 February 2013, there was an incident at the Emmaville range and he decided to cancel his target shooting licence and maintain his licence for recreational hunting and vermin control only. The day following that incident, on or about 25 February, he telephoned the Firearms Registry and discussed with a staff member removing the “T” for target from his licence. He was told that it had been done and that he would no longer have two participate in target shoots.

11. In the years following that telephone conversation, he continued to renew his licences for recreational hunting and vermin control. After the telephone conversation, he did not attend any required SSAA target shoots, as he had cancelled his target shooting licence. There were no SSAA requirements for yearly attendance for his other licences.

12. On or about 28 January 2010, he joined Reddistone Pistol Club (RPC) and found that he quite enjoyed pistol shooting. He has been a member of RPC for over 11 years and has never had any issues or problematic incidents or behaved in any way such as to cause concern. He attached a copy of an email dated 13 June 2021 by the president of RPC, Mr Ian McBain to the National Shooting Council testifying to those facts.

13. On Thursday 8 April 2021 at approximately 8:00 a.m., he attended Norco Rural Store in Glen Innes to purchase mice bait. He walked over to where the mice bait was stacked and was deciding which was the cheapest option to buy. An employee who he knew as Brett walked over and said to him, “You’d better buy two before they go up in price”. Either he or Brett – he could not recall – then brought up the topic of firearms. While discussing firearms, the applicant tapped his left-hand shirt pocket, gesturing to his wallet and said “you don’t know what I got here”. Brett asked “How do you go about getting a pistol licence?”

14. The applicant then explained what Brett would need to do to obtain a pistol licence. The applicant noticed that another Norco employee who he knows as “Bernie” had been listening from afar to the conversation. At the end of the conversation, he noticed Bernie walk into the store office. Mr Martin paid for the bait and then left the store, as there were other customers waiting to be served.

15. On Friday 9 April 2021 at approximately 5:15 p.m., the police came to his house and informed him that his firearms licence was suspended, and they confiscated his weapons. On 9 April 2021, he received a notice of suspension and on 21 April he sent a letter of response regarding the suspension. On 1 June 2021, he received a notice of revocation of his firearms licence dated 19 May 2021 from the police. He applied for an internal review on 3 June 2021.

16. The statement of reasons provided to him on 10 August 2021 following the internal review listed a series of concerns and reasons for the revocation, including his alleged unstable mental state and alleged abuse of alcohol. His mental state is stable and sound and he has had no issues at any point. None of his medications are for mental health issues. He has had physical health challenges, and for that reason he was briefly on a disability pension, but it had absolutely no relation to his mental state.

17. As regards his relationship with alcohol, he takes pride in brewing beer that has won various awards in local competitions in Glen Innes and the surrounding New England area. He does not, however, consume excessive amounts of alcohol, averaging approximately 4 to 5 375 ml bottles of homebrewed 5 percent beer a day across the whole day. He does not become inebriated or consume excessive amounts of alcohol with any regularity or frequency. He does not abuse alcohol or any other substances and does not use drugs of addiction.

18. In oral evidence at the hearing the applicant reiterated those points and said that he had joined SSAA in June 2000, and applied for his licence in 2003. He was on a disability support pension for his back and had three spinal operations, now having rods, screws and a metal plate in his back. That condition led him to leave his paid work as a plant operator at the age of 50 and to qualify for the disability support pension until he qualified for the age pension. In 2003 he could not work because of his back pain. But at present he is quite mobile and can pick up a rifle from the ground. He had no other reasons for applying for a disability support pension and has no mental concerns.

19. He had removed the target ground from his A licence because of a confrontation at the Emmaville shooting range. There are rifle and pistol ranges and Emmaville hosts several clubs, including Reddistone Pistol Club. When he removed the target ground from his category A licence, it meant he could still use rifles to hunt and for vermin. A target licence requires 6 to 8 shoots a year. In 2013 when he changed his licence, he did not engage in any target shoots.

20. He became interested in pistol shooting seven or eight years ago and applied for a probationary licence in 2010. The president of Reddistone Pistol Club, which uses the range at Emmaville, Ian McBain, signed his application. The applicant attended club shoots every month because he enjoyed it and also because he was asked to help with the teaching program for new members, as he was classed as a senior member. There was no particular training for that role, and it was more based on common sense and regular discussions. No concerns had been raised about his conduct or his handling of firearms, nor had there been any comments about his mental state or alcohol use. He had never been a member of an organization called Emmaville Pistol Club and did not know if it existed.

21. The witness was then asked about dry firing. He explained that it was a common training or practice exercise to strengthen a shooter’s grip on a pistol. Olympic competitors do it. His own practice was to sit before his television with a broom handle on to which he had attached a grip. He seldom uses a real gun for it as in some types of pistols dry firing can damage the firing pin. He only did it in his house and had never received any comments about it. As regards alcohol consumption, sometimes he would have none in a day, sometimes up to 3.

22. As regards the Norco Rural Store incident, he had been buying mice bait when somebody yelled something. He saw someone run into the store office and then the police came and took his guns. He was asked whether he might have used the words that Bernard Julian attributed to him in event report E 80567068 (exhibit R1, p 46) and replied that someone had asked him how to go about obtaining a pistol licence, and he had shown him his licence. He said he was a member of the Reddistone club at Emmaville. There was nothing else, he had not said that he “can get you before you cross the road” or that he had a 10 shot semi-auto on him.

23. The police body worn video (BWV) recording was played, which showed police officers attending at the store the following day. The audio quality was poor but the assistant said the applicant had come to the store to buy soup.

24. The applicant said that Bernie [Mr Julian] was a worker at the store. He himself only goes there occasionally but he does know some of the locals. On that occasion Brett came to assist him. He had shown Brett his licence because he had asked to see it as he wanted to apply for pistol licence. He did not recall talking to Bernie, who was coming and going at the time.

25. He had been joking with Brett and engaged in innocent banter. As it was not a serious discussion, he does not recall it. At the time he was wearing suspenders and if he had been carrying a pistol it would be in its case. He did not have a pistol under his shirt and had never gone into a store with a holstered pistol, which was not permitted. He had never threatened anyone with a gun.

26. He was then asked about intelligence report I 81920446 (exhibit R2, p 5) in which he was alleged to have made comments to the effect of what people could do with a “a .243 earring”, which was construed to suggest using a firearm to shoot at another individual’s face or head. No time or date for the comment was given. The applicant admitted making such a remark, in about 2000, but not when in possession of a gun. When his father had died, all the relatives had arrived at the house for the funeral. There had been some valuable fishing reels stored under the house but they had disappeared at the time and a brother-in-law had taken them. The comment was made in a telephone message to the brother-in-law. He must have owned the .243 at the time, and his brother-in-law knew that he owned guns. He agreed that he should not have said it, but said he had been upset at the time. He had never displayed a gun, and had not seen his brother-in-law since his father’s funeral but agreed that it was inappropriate and said he would not say such a thing today.

27. As regards report I 308112798 (exhibit R2, p 2) and the reference to a small hand-made cannon shown at a Reddistone Pistol Club meet function, he said he had made one out of an old rifle barrel he had found at a silver mine. It was about 6 or 7 inches long and used black powder, which he could obtain as he had a black powder revolver. The powder was ignited by a lit fuse inserted through the back of the tube. As he had considerable past experience in woodworking, he had made a pair of wheels which were mounted on a bolt that passed under the barrel. He had thought he might be able to register it, but was unable to do so. When he learned that it could not be registered, he promptly destroyed it. He realized now that it was not an appropriate thing to do but had thought it was a good idea. He would never do it again because it is illegal. He had never been charged over the incident, in fact he had never even received a traffic ticket. He holds a New South Wales driver licence.

28. He is still asked from time to time by other people to get rabbits for them. He is lost without his guns as he really enjoys shooting. He had changed his behaviour, realizing that he “must keep [his] mouth shut” and keep his guns locked up. He had never been charged with any infractions of firearms law, nor had he ever received any warnings. He has no health problems other than his back. As regards the claims about his mental state, he said of the presumed source “Maybe they’re sillier than me”.

29. Cross-examined by Mr Zoppo on behalf of the respondent, he said he had taken his home-made model cannon to the range to show the other members. He had kept the model for about 12 months and had fired it at his place 6 or 7 times. He had not been aiming at anything, he just liked to see it jump. He had seen pictures of such things in Australian books and thought he could build one. He knew he would need to obtain a licence after he had built it, and tried to find out how to do so. When he found he could not do so, he broke it up and probably used the parts for something else. He had fired it about twice at the club. Ian McBain had telephoned the Firearms Registry on his behalf to ask if it could be registered and was told that it would not be.

30. The comment about the “.243 earring” arose because the three fishing reels had been taken from under his father’s house after he had died. He had said “if I don’t get them back, I’ll pierce your ear [with a .243]”. He could understand that people would become upset by such a comment and would never make such a remark in a shop. It happened just after his father had died, in 2000, and was not more recent than that.

31. He had never been charged with anything other than a drink-driving incident in Queensland. He used his guns to shoot rabbits, but bought the .243 after he had on one occasion shot a boar but it had immediately attacked him and as a result he was unable to run because of the leg injury it inflicted.

32. He had never heard of an organization called Emmaville Pistol Club. The Reddistone club had been forced to cease using the Emmaville range because there was a dispute over the title to the land. Consequently they had to join Glen Innes which has its own range about 30 km distant. They were able to return to the Emmaville range after the property title issue had been resolved.

33. The incident on 24 February 2013 at the Emmaville range (exhibit A1, para 8) that led to him cancelling the target shooting authorization on his licence stemmed from a couple of angry men who were not happy. They had been carrying on about targets, and one of the men would not clear his items from the shooting bench, as members are required to do after they finish. They then became heated about it and left. The dispute had nothing to do with him. He had never been asked to leave the club, that was just a story that went around.

34. He had practised dry firing in order to improve his grip. Anything can be used for that purpose, and one shooter made a practice of using his mother’s iron. It was a very common practice but he did not do it at the club. Someone must have made it up. Asked why he practised dry firing using figures on a television screen rather than an inanimate object, he replied that it was just a television screen and everyone does it.

35. He denied any alcoholism problem and said that he brewed his own beer and won prizes for it. He drinks at home and has taken refreshment at a hotel on only one or two occasions in the last 20 years. Currently he drinks two or three “stubbies”, sometimes four or five, but he can go for a week with none.

36. His recollection of the Norco store incident was not clear, he was not really sure but he would remember if the exchange had been an angry one. He did not know why he had said it, it was just a passing thought at the time. He might have patted his shirt pocket as he carries his wallet in there but did not recall saying “you had better be careful” or “I can get you”. He could not recall whether or not he had said “I could stop you”. He was just showing that he had a licence, and that was not criminal. At the time he had owned four pistols, two of which were semi-automatics with magazines that would hold 10 rounds, but were only allowed to hold five rounds. He keeps some hollow point cartridges for rabbits, but does not use them for target shooting. He does his pistol shooting through the Reddistone club, on the first Sunday of the month, which is when the club has the use of the Emmaville range.

Mr Ian McBain

37. Mr McBain is a farmer aged 75 with extensive experience with firearms. He had joined the army as a volunteer and had served in combat in South Vietnam. He had risen through the ranks and was placed in a training role because of his experience. He said in those days Australian soldiers trained with real firearms, not with plastic toys.

38. He had known the applicant for 11 or 12 years in the Reddistone Pistol Club, of which he is the president, supervising the club shoots. The category H requirements for pistol club members are to perform six shoots a year for the first handgun, and larger numbers for subsequent types of guns. The shoots are recorded in the range record book, which all shooters must sign. As president he maintains a record of all member shoots for the current year and for the previous year. He is required to sign an attestation of the records. authenticity for the Firearms Registry each year.

37. The applicant did not perform any shoots now because of the revocation of his licence, but before that he did and was one of the club’s most enthusiastic members. He had never seen any evidence of alcohol or drug abuse. He would occasionally have a drink at the applicant’s house because of a shared interest in woodwork. He had seen no evidence of mental disability and had never had any concerns about him as regards gun safety, especially as regards category H firearms, which require special care because they can so easily be turned around. Asked to comment on the “.243 earring” remark, he said that the applicant might get hot under the collar under duress but he had never seen him display any aggression, other than uttering a few expletives in relation to the political class, as most Australians do. He could see no problem about the applicant possessing firearms.

38. In cross-examination Mr McBain said he had checked the applicant’s attendance records as he was required to attest to their accuracy and the applicant’s shooting efficiency and submit the attestations to the Firearms Registry. There is no attestation for the applicant since his licence was suspended, as he is not entitled to participate. The witness had maintained records of the 2020 year shoots because at the end of 2020 he would have been required to attest to the accuracy of the records. The applicant had never been an inefficient member since receiving his probationary licence in April 2003. The club does not keep records for earlier years, but the Firearms Registry would be able to locate the attestation for 2020. The club does not keep records for earlier years because the amount of paperwork would be excessive and they are a voluntary organization.

39. The applicant would be in the best position to provide records for earlier years, and the Firearms Registry would receive the attestation. The applicant’s attendance would be recorded at the end of the year, and he was the best attender at the range except for Mr McBain himself. Mr McBain kept the score sheets, totalled them up and signed the attestation. The applicant never attended less than 10 times in a year and always fulfilled his requirements, so Mr McBain never had to chase him up.

40. When a shoot is concluded, Mr McBain collected the scores. If there is non-compliance in relation to the mandatory shoots, a licensee is notified and can give an explanation to the Firearms Registry, which may permit the licensee to continue, otherwise his licence will be cancelled. As president he is notified if a licensee has been suspended. The Firearms Registry has records for the applicant for the whole period of his membership.

41. In relation to the model cannon, the witness said it was fully under control when at the club. It was before cannons had to be registered. Some clubs used them to signal the opening of a shoot, but they became popular and the Firearms Registry classified them as black powder firearms. There was never any danger caused by the model. When the law was changed, the witness informed the applicant that he had to register it, but he had preferred to simply destroy it.

Mr Tom Jones, forensic psychologist

44. At the request of the applicant’s solicitors, Mr Jones, a forensic clinical psychologist, prepared an assessment dated 5 April 2022 (part exhibit A2) following telephone interviews with the applicant on 1 March 2022 and 7 April 2022 and on 1 March 2022 with his wife, Mrs Heather Martin. He also noted that a report by the applicant’s GP Dr Correy dated 5 April 2019 made many references to back pain and knee pain between 2008 and 2018 and to the prescription of various analgesic medications, but in that report there was no reference to mental health disorders or to alcohol problems or treatment for any such conditions.

45. Mr Jones observed that there was consistency between the statements of Mr Martin at interview and the comments of his wife Mrs Heather Martin at interview, and the GP report dated 5 April 2019. There was inconsistency between the applicant’s statement that the Norco store incident was cordial and the behaviour of “Bernie”, who informed police about it, and also between an anonymous report that he had left the Emmaville club because of mental health and alcohol concerns, which the applicant denied.

46. Mr Jones wrote that he did not have enough information to be able to determine which of the conflicting accounts was more credible, but on the basis of the applicant’s self-report, his interviews with him, his wife’s report and the GP report, “I cannot diagnose any mental disorder”. As the applicant denied any mental health or alcohol problem, there was no basis for recommending psychological, psychiatric or medication treatment. Mr Jones was not required for cross-examination.

Respondent’s submissions

47. In written submissions filed on 29 November 2021, the respondent outlined the applicable law and the background to the case. The respondent submitted that it was not in the public interest for the applicant to continue to hold a licence for a number of reasons. The first was his failure to comply with the conditions of the category H licence and the regulation as regards participation in club shoots.

Failure to comply with category H participation requirements

48. The respondent submitted that the applicant’s attendance records as supplied by SSAA (exhibit R1, p 61) showed that he had not participated in any shooting activities between 2017 and 2021. As that information related to long arm participation, not category H, the respondent undertook to request a search of the Firearms Registry records for category H returns relating to the applicant.

Incidents of concern

49. The respondent also argued that the Commissioner was aware of at least four incidents since approximately 2016 or 2017 in which the applicant’s behaviour had been concerning to members of the public. They involved persons who held concerns about the applicant’s behaviour, mental health, anger issues alcohol use and contraventions of firearms laws.

50. The first was the Norco Rural Store incident, described above, which was of such concern that a staff member raised the issue with management and called the police. The applicant’s protest that the conversation with the store assistant was “cordial” and did not constitute an offence raised the question that if the conversation was not offensive and of concern, why the store assistant would have contacted the police.

51. Then there was the applicant’s producing of a small handmade working model cannon at Reddistone Club meet function in approximately 2016 or 2017. The applicant did not hold a licence that would allow him to possess and use an item that has been described as a cannon.

52. Next, the respondent contended that the applicant was restricted from the Emmaville Pistol club after he was observed by members shooting at cricket players on television for practice during a dry fire session, and concerns relating to anger issues and heavy alcohol use, which suggested that he had turned his mind to firing his pistol at persons that he could see.

53. Further, he had been heard making comments regarding firearms use on other individuals and the effect of a “.243 earring” would have on people (relating to the effect of a rifle on a human head).

54. Those comments and actions of the applicant had raised significant concerns in the community regarding their own safety and, more generally, public safety. The three reports were made at different times when the applicant made comments about using firearms to harm people. That conduct had raised significant concern about public safety among members of the local community regarding the applicant’s possession and use of firearms. Such conduct created a risk to public safety, both in terms of any possible conduct of the applicant, but also any response that might arise from members of the public. Such concern would at the very least diminish public confidence in the administration of the firearms licensing system that is focused on public safety.

Health

55. The applicant had not provided any evidence from a psychologist or psychiatrist in relation to the concerns raised in exhibit R1 relating to concerns about his mental health. His only response was in his affidavit where he stated that his mental health was stable and sound. Nor had he provided any evidence as to why he was on the disability support pension so as to address the respondent’s concerns on any potential impact on the applicant’s ability to safely possess and use firearms, except to say that he had “physical health challenges” and the disability pension “had absolutely no relation to my mental state”.

56. The applicant’s failure to comply with the Act demonstrated his unwillingness or inability to comply with the participation requirements and other prohibitions relating to firearms, in circumstances where he should have been well aware of his obligations. In that regard, his submissions demonstrated his continued failure to appreciate or understand his obligations under the Act. The contraventions had been occurring since at least the 2010 to 2011 year, since the applicant had failed to participate in mandatory shooting activities. In that respect it was against the public interest for the applicant to have the revocation set aside. His failure to provide any objective evidence to rebut the suggestions that his physical or mental issues and the suggested excessive consumption of alcohol would impact on his ability safely to exercise control of firearms.

57. In oral submissions at the hearing, the respondent reiterated those points, adding that Mr McBain’s evidence added little because he did not keep club attendance records for more than the current and previous year. Mr Jones’s psychological report reflects only what he was told. His conclusion was that he “could not diagnose”, which was unclear. The dry firing incident was seen by members of another club, involving clicking at cricketers on television. But a licensee should never point a firearm at a human being. As regards alcohol, an average of four or five beers a day would be significant. The comment about the .243, if carried out, would have been fatal.

58. The report was based on information received, and was not clear, however. It was not sufficiently specific to provide clarity as to when the comment was made. The home-made cannon was also a concern, as the applicant had kept it for some time. It had not been lawful to keep it, as the legislation in s 4 defines a firearm broadly. The 2006 regulation did provide for the issuance of a permit for certain types of cannons, but subject to conditions such as historical significance. The cannon was therefore a firearm and the applicant had no permit for it.

59. In the Norco Store incident, the applicant had made a statement that was intimidating in that it raised the possibility that the applicant might be armed. The store assistant, Brett, said he was not concerned by the exchange, but the point was that the circumstances made the incident intimidating.

Consideration

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

61. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s revocation of a licence or permit: s 75(1)(c). An internal review was applied for and duly determined (ADR Act s 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

62. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s intemperate habits or being of unsound mind.

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

The public interest

64. It is not suggested that the applicant is not a fit and proper person to hold a firearms licence. The ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to hold a licence, within the meaning of s 24(2)(d) and cl 20.

65. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

66. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

67. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill the tribunal stressed that public safety is to be given paramount consideration.

68. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66] 66].

69. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

Failure to comply with conditions of licence and the regulation for category H

70. The first ground on which the respondent submits that it is not in the public interest for the applicant to continue to hold a licence is that he failed to comply with the participation requirements set out in cl 106 of the Regulation. Under that regulation, the holder of a category H pistol licence on the ground of sport and target shooting must participate in at least 6 shooting activities of an approved pistol club if the licensee has only one kind of pistol, and if the person has two kinds of pistol, a minimum of 8 shooting activities.

71. The respondent submitted that for each of the 2012 and 2013 compliance periods (years), the applicant had taken part in only four shoots and was therefore non-compliant. For the years 2013 to 2021, he was not recorded as having participated in any shoots at all (exhibit R1, pp 61 – 62). The respondent pointed out that in Todorovski I had found that disregarding or failure to comply with the mandatory requirements arising from a licence reason category, particularly for a number of years, meant that it was not in the public interest for the applicant to continue to hold a licence.

72. It is not disputed that the applicant was first authorized for firearms in 1996 under the then legislation. He held a licence continuously from March 1998 to May 2021, when it was revoked. Under previous and current legislation the applicant has thus been authorized for long arms for in excess of 24 years. He has been authorized for category H firearms since 19 April 2010, initially by way of a probationary pistol licence.

73. On 25 February 2013, the applicant requested that his category AB firearms licence be amended to remove the sport/target shooting reason. That did not affect his category H licence for his pistol. His most recent licence was issued for the reason of sport/target shooting for his category H, and recreational hunting/vermin control for his category AB long arms.

74. The respondent’s contention about Mr Martin’s failure to meet club shoot activity requirements is based on a letter from SSAA New South Wales branch dated 6 August 2021, which begins “Please find hereunder longarm attendance records as requested…. The ‘activities listed’ column is per what each member takes as their Longarm activity on SSAA membership forms….” (Exhibit R1, p 61) The table shows only 4 target shoots in 2011–2012 and 2012–2013 respectively, and no shoots attended at all from then until 2022.

75. The applicant argues, however, that the SSAA records relied on relate only to category AB, and after the Firearms Registry had at his request removed sport/target shooting as a reason on 25 February 2013, he no longer had any obligation to engage in AB long arm target shoots and accordingly did not do so.

76. His participation obligations for category H did remain, however, and his evidence is that he diligently met those requirements, not only because he enjoyed pistol shooting, but also because as a senior member he was given a training role with newer members. The club president, Mr McBain, corroborated the applicant’s evidence, stating that he was the most regular attender at pistol shoots, other than himself, and was in fact the club’s most enthusiastic member. Mr McBain duly recorded the applicant’s attendances and made the required attestation to that effect to the Firearms Registry every year. He no longer had the attendance forms for the years before 2021, however, because he was not required to keep them and in any event as a voluntary organization the club could not handle the amount of documentation involved if they did so.

77. The applicant maintained that the Firearms Registry should have those records, however, and submitted the respondent could perform a search for them, which the respondent undertook to do. A direction was issued allowing the respondent 7 days following the hearing to file such records relating to category H firearms as could be located. No such records have been received by the tribunal.

70. The respondent’s only evidence relating to the applicant’s category H attendance records is therefore the SSAA letter of 6 August 2021 (ibid.). That letter states in two places that it relates to the applicant’s long arm activity, and therefore says nothing about category H handgun participation. The respondent’s contention that the applicant failed to comply with the relevant participation requirements therefore cannot succeed.

The Norco Rural Store incident

79. The respondent also relied on descriptions of a number of incidents, the first one taking place at the Norco Rural Store in Glen Innes on 8 April 2021. According to the account by Mr Bernard Julian summarized in event report E 80567068, the applicant and “staff members” were completing a sale regarding rat bait when Mr Julian advised him that if he wished to, he could purchase another, as the price was about to rise. The applicant had then said to him “you better be careful what you say, you don’t know what [I’m] carrying” and patted his chest pocket area. Mr Julian had then said jokingly, “Yeah, all right mate, we know you don’t have a heart”. The applicant then seized his wallet from his pocket and showed his gun licence and said “That shows I carry a handgun”, then proceeded to say he had handguns and was a member of the Emmaville pistol club. Mr Julian had then said “You better have to get it out quick because I am a good runner”, to which the applicant replied “I can get you before you cross the road”, and “I’ve got a 10 shot a semi-auto in here and the hollow points will stop you in your tracks”. Mr Martin then left the store. Mr Julian informed his supervisors about the incident and they in turn advised him to contact police. No 000 call was made on the day of the incident, however.

80. Mr Julian stated that he had not had any fears about the matter but said he was very concerned for the applicant’s mental health. The report does not suggest that the applicant actually had a handgun on his person at the time or that his attire could have given the impression that he did.

81. In his affidavit the applicant deposed that an employee named Brett (whose surname he did not know) had suggested he might buy two of the mice bait containers before they went up in price. They then started discussing firearms and Brett asked him how to go about obtaining a pistol licence, whereupon he explained the procedure. He noticed another Norco employee who he knew as “Bernie” [Bernard Julian] who had been listening from afar to the conversation and at the end of the conversation walked into the store office.

82. In his oral evidence the applicant said he was not really sure about the details of the incident, but would be likely to remember it if it had been an angry exchange. What he had said was just a thought at the time and he had no recollection of saying “You better be careful” or “I can get you” and in any case licensees were not allowed to carry a handgun outside their house. He did not recall whether he had said anything about being able to stop someone.

83. Given the existence of an almost contemporaneous written record of the conversation, it seems more probable that the applicant did make some ill-advised comments about his handgun ownership in the course of a conversation which, as the respondent’s submissions acknowledged, was conducted at least in part in a jocular manner.

84. The weight that can be given to the respondent’s evidence on the point is, however, qualified by some gaps and inconsistencies. The applicant states categorically that the exchange took place with an employee who he knew as Brett, and that “Bernie” [Bernard Julian] was overhearing it from a distance. Yet in the BWV footage and the event report, Mr Julian is clearly giving the impression that the applicant’s conversation was with himself. There appears to be no reason why the applicant would invent a staff member named Brett, with whom he had apparently dealt before.

85. There is no evidence from the respondent about whether or not an assistant named Brett was involved in the conversation, and Mr Julian refers only to other “staff members” performing the transaction. Nor is there any evidence from the respondent as to whether Norco actually had an employee named Brett at the time. And there is the detail that on the BWV recording Mr Julian says the applicant entered the store to buy soup, whereas in the event report he said it was rat bait.

86. On the preponderance of probabilities it appears likely that the applicant and Brett had a conversation about how to apply for a pistol licence and that in the course of a joking exchange the applicant veered off into some foolish braggadocio about gunplay. But Brett (assuming he exists) apparently did not regard the comments as being of any consequence, and even Mr Julian, who raised the matter with management and may have been the employee who was asked by them to report it to the police, said he was not concerned about the incident, but only about the applicant’s mental state. It did not constitute a threat raising concerns for public safety, but the applicant has learned from the experience “to keep [his] mouth shut”. The episode does not therefore merit substantial weight on the public interest issue.

The dry fire allegation

87. The respondent stated that there had been a report that “the Applicant was restricted from the Emmaville Pistol Club after he was observed by members shooting at cricket players on television for practice during a dry fire session” (event E 80567068, exhibit R1, p 47). The event report stated that police contacted a (redacted) person at Emmaville Pistol Club who said he or she had been told about the incident by other members.

88. It was not disputed that dry firing practice intended to strengthen a pistol shooter’s grip is a known practice in the sport, including among Olympians, but the respondent submitted that the applicant should only have practised aiming at inanimate objects, not at human beings.

89. The applicant explained that he had fashioned a device for dry firing out of a broom handle to which he had attached a grip but that other shooters used other objects, one participant using his mother’s electric iron. Actual firearms were seldom used because of the risk of damaging the firing pin by cycling the action on an empty chamber.

90. The respondent’s evidence was based on a double hearsay representation by a redacted person about a statement by an unnamed and unidentified person at an unstated date. No direct evidence of the incident was adduced. The applicant’s evidence was that he had never been restricted or expelled from any pistol club and that he was unaware of any organization called the Emmaville Pistol Club. There was no documentary or other clear evidence adduced to show that a body by that name does exist. There is no evidence as to the circumstances in which members of another club were able to observe Mr Martin, whose unchallenged evidence was that he only practices dry firing at home, never in public. It could also be pointed out that a television screen is an inanimate object. This report does not in my view merit significant weight.

The model cannon

91. Information report I 308112798 (exhibit R2, p2) states that the Firearms Registry received information in July 2021 that in approximately 2016 or 2017, the applicant produced a small hand-made cannon at a Reddistone Pistol Club meet function.

92. The applicant admitted that he had fashioned a small working model of an old cannon, some 6 or 7 inches long out of an old barrel he had found at a silver mine. He had used his woodworking skills to make two wheels, which were joined by a bolt welded onto the underside of the barrel. It used black powder, which he could legally obtain, and a .36 slug, being fired by lighting a fuse inserted through a hole in the back. He had kept it for about 12 months and had demonstrated it twice at the Reddistone club, as well as firing it six or seven times at home. He did not aim it at anything, but just liked to see it jump.

93. Mr McBain was under the probably mistaken impression that until the 2017 regulation such a device did not require registration. Clause 62 of the 2006 regulation provided for permits for antique cannons but cl 116 exempted copies of antique firearms, which may have been the source of the confusion. At all events the question cannot have been one that arose very often.

94. However, after the 2017 regulation was gazetted, the applicant asked Mr McBain to raise with the Firearms Registry the question of whether it could be registered. Receiving a response in the negative, Mr McBain informed the applicant, who promptly destroyed the cannon. Mr McBain said it was at all times under control at the club, and there was no safety risk involved.

95. It does not appear that the applicant made the model cannon for any nefarious purpose, and indeed it is not easy to see how it could readily represent a significant threat to public safety. Nevertheless it was a breach of the legislation and must be taken into account on the public interest issue.

The “.243 earring”

96. Information report I 81920446, 21 July 2021 (exhibit R2, p 5) reports that “The POI [person of interest] has allegedly made comments to the effect of what people could do with a ‘.243 earring’. It is the author’s assessment this likely relates to using a firearm to shoot at another individual’s face or head. No specific time or date of the comments being made was provided with the information”.

97. The applicant explained that the incident occurred in 2000 after the death of his father, when family members gathered at his house for the funeral. His father had stored three valuable fishing reels under the house, but one of the applicant’s brothers-in-law had taken them after the funeral. The applicant had left a telephone message with the brother-in-law stating “If I don’t get them back, I’ll pierce your ear [presumably with the .243]”. He agreed that people might find such a comment upsetting, but said he would not say anything like that today. No action had been taken in connexion with the comment and the applicant has not seen the brother-in-law since. The latter now lives in the Northern Territory.

98. The remark was made in a telephone message and did not involve any brandishing or handling of firearms. Nevertheless it did constitute a threat, even if it could be construed as mere hyperbole. Mr McBain said in relation to that incident that the applicant “might get hot under the collar” under duress, but he had never seen him display any aggressive behaviour, though he could occasionally utter some expletives about the political class, as most Australians did.

99. The incident supports the respondent’s case, but it is not disputed that it occurred approximately 22 years ago and there has been no repetition of such conduct.

Mental health and related matters

100. Referring to event report E 80567068 (exhibit R1, p 47), the respondent stated that police had received information raising concerns regarding the applicant’s mental health. The written submissions contend that “The Applicant has not provided any evidence from a psychologist or psychiatrist in relation to the concerns raised in the s 58 bundle relating to concerns about his mental health. His only response is in his affidavit where he stated, “My mental health is stable and sound, and I have had no issues at any point”, and providing a two-Page medical record from East Avenue Medical Centre in Glen Innes, NSW, which sets out a list of medications that he was taking at the time of the record”.

101. The passages in the event report referred to are where Mr Julian of the Norco rural store states that he had no personal concerns about the incident but did have misgivings about the applicant’s mental health, and the unsourced third-hand report from another pistol club. The shortcomings of that evidence have been described above.

102. Since the written submissions were filed on 20 November 2021, the applicant has tendered a report dated 5 April 2022 (part exhibit A2) from a forensic psychologist, Mr Tom Jones. On the basis of interviews conducted on 1 March 2022 and 7 April 2022, Mr Jones concluded that while he could not on the evidence before him make a determination about the facts of the Norco incident and the Emmaville Pistol Club allegations (exhibit R1, p 47), “On the basis of Mr Martin’s self-report, my interviews with him, his wife’s report and the GP report, I cannot diagnose any mental disorder”.

103. The psychologist also notes that while the applicant had said “’pain gives me trouble’ and can cause him to ‘get unhappy’, he has not had serious depression or anxiety. He denied ever having sought or received any psychoactive medication or any other form of mental health treatment. I enquired about the presence of psychotic symptoms or other signs of mental illness but no such features of mental illness were evident in his history, form of speech or content of speech. He said that mental illness had not been one of the grounds for having been granted his disability pension”.

104. The report also quotes Mrs Heather Martin, the applicant’s wife of 36 years, as saying, “I am biased but I think the world of him. I think he should have his [gun] licence back. I have no fear of him. He gets back pain but he is as mentally stable as anyone else”. She also said, “He does not get angry at people. I can’t imagine him making threats”.

105. The respondent took issue with the report on the ground that the conclusion “I cannot diagnose any mental disorder” could mean that because of the paucity of evidence he was unable to make a diagnosis, and therefore the report was of no value. If one reads the report as a whole, however, that conclusion does not seem correct. While Mr Jones does state that while he lacked sufficient evidence to reach a firm conclusion about the allegations in the Norco report, on the whole the information before him showed that the applicant is not suffering from any mental disorder.

106. The respondent’s evidence in relation to mental health consists of the unsourced anonymous claim and “Bernie”’s comment in the Norco event report. The difficulties with that evidence have been pointed out above, but it does seem likely that the applicant in the course of a friendly and partly jocular conversation uttered some foolish and ill-advised comments about his pistol ownership. Those comments could not reasonably be viewed as an actual threat, and the applicant says he would not say anything of that nature today. There has been no repetition of that conduct.

107. On the other hand, the psychologist saw no evidence of any mental disorder and no need to prescribe any psychoactive medication. Mrs Martin said she had no fear of him and that he was as sane as anyone else. Mr McBain had observed no evidence of any mental disability either. That allegation also is lacking in substance.

108. The respondent also relied on the unsourced Norco Rural Store event report allegation that the applicant was “a heavy alcoholic”. That is the only evidence of alcohol abuse. The applicant himself said he does drink beer that he brews himself and has won prizes for in the local district. He has only partaken at a hotel about twice in the last 20 years. Now he sometimes goes for a week without a beer, but sometimes has one to 3 or up to 4 or 5. At one point he did say that he averaged four or five “stubbies” a day, which Mr Zoppo said could be cause for concern.

109. Mr McBain in his evidence said he had seen no indications of alcohol abuse or drug use, adding that he would occasionally have a drink at the applicant’s house because of a shared interest in woodworking. Mr Jones in his interviews with the applicant and his wife also saw no evidence of alcohol abuse, and Mrs Martin also said he did not over-indulge: “He may have one or up to 4 [beer] drinks but does not get drunk or argumentative”. Mr Jones also noted that the report by the GP, Dr Correy, on 5 April 2019,” made many references to back pain and knee pain between 2008 and 2018 and to the prescription of various analgesic medications, but in this GP report there was no reference to mental health disorders or to alcohol problems or treatment for any such conditions”. That allegation has therefore not been made out.

Conclusion

110. The strongest points in favour of licence revocation thus appear to be the “.243 earring” comment and the fabrication of the working model cannon. The former could reasonably be taken as a clear threat of violence using a firearm, though it was made in a telephone message and not in person or in the presence of firearms. The applicant took the matter no further and was never charged. He had no further contact with the person who had allegedly stolen the fishing reels, and who now apparently lives in the Northern Territory. Most importantly, the incident took place 22 years ago and there has been no repetition of such conduct since.

111. The fabrication of the working model cannon was a breach of the firearms legislation, though probably an inadvertent one. The applicant had asked the club president to enquire of the Firearms Registry whether it could be registered, and on being told that it could not he promptly destroyed the offending item. He was never charged or cautioned over the matter and Mr McBain said that the applicant’s demonstration of its use at the club was always completely under control and there was never any threat to safety.

112. The applicant is a man aged 77 who has no criminal record (and no traffic record in New South Wales, though apparently one charge in Queensland). He admits the two indiscretions mentioned above and has expressed remorse about them but, importantly, has no history of violence or of in-person threatening behaviour. Mr McBain conceded that he might “get hot under the collar” if under duress, but he has never seen him engage in aggressive behaviour. Nor has Mrs Martin, who says she cannot imagine him being aggressive.

113. The applicant has a stable domestic background with his wife of 36 years. In the 24 years he has been licensed for firearms, he has been charged with no violations of the legislation. Mr McBain, who has a long association with firearms, not only as a club president, but also as a combat veteran and as an army officer in a training role, he has no concerns about the applicant’s compliance with firearms safety procedures, including in relation to handguns.

114. On a balanced view of the evidence, bearing in mind all the relevant circumstances, I find that there is virtually no risk to the public (including to the applicant himself) involved in the applicant’s holding a category ABH firearms licence. As was said in Webb, “Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. I therefore conclude that it would not be contrary to the public interest for the applicant to continue to hold a licence. The decision under review should be set aside.

Certificate under s 128 of the Evidence Act

115. At the end of the hearing, the applicant made an application under s 128 of the Evidence Act in relation to the evidence of Mr Martin and Mr McBain in relation to the working model cannon. Mr Penny submitted that a model cannon could be a subject of concern, but as soon as the legal position had been brought to their attention, the applicant had destroyed the item. Nothing further had come from the matter and it was not clear when the events in question had taken place. It did not appear that the item presented any significant threat to public safety. Leave was granted to file further submissions on the point after the hearing.

116. In written submissions, Mr Zoppo indicated that the respondent neither consented to, nor opposed, the application but submitted that it was inappropriate for the applicant to apply for such an order on behalf of Mr McBain, as well as himself. It was also argued that insufficient detail had been given about the grounds for the application.

115. It does not appear, however, that anything in s 128 precludes the making of a joint application in an appropriate case. The two witnesses gave evidence relating to the same points in the respondent’s case and explaining how the model cannon came to be fabricated, used and destroyed, and their joint and several roles in that enterprise. Both witnesses had initially been under the mistaken impression that the cannon did not require a permit at the relevant time. When they became aware of the true situation, the applicant immediately destroyed it.

116. It was in the interests of justice that the evidence should be given, as it formed a significant part of the issues in dispute, but the evidence could expose both witnesses to prosecution for a breach of the Firearms Act. The Evidence Act s 128(4)(b) specifically contemplates that a certificate may be issued after the evidence has been given, if there are reasonable grounds for the objection. For the reasons given above, there are reasonable grounds for the objection and an order under s 128 should be made in relation to the relevant part of the evidence.

Order

1. Decision under review set aside.

2. A category ABH firearms licence is to be issued to the applicant.

3. A certificate under s 128 of the Evidence Act is given to the applicant and to Mr Ian McBain in respect of their evidence relating to the working model cannon fabricated by the applicant.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 07 July 2022