Martin v Commissioner of Police, NSW Police Force - [2010] NSWADT 276

No judgment structure available for this case.

CITATION: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

DIVISION: General Division

PARTIES:
APPLICANT
Gordon George Martin
RESPONDENT
Commissioner of Police, NSW Police Force

FILE NUMBER: 103071

HEARING DATES: 25 June 2010

SUBMISSIONS CLOSED: 9 July 2010

DATE OF DECISION:
18 November 2010

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Firearms licence - revocation of licence or permit – public interest

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms Act 1996
Firearms Regulation 2006

CASES CITED: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59
Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75

REPRESENTATION:
APPLICANT
P Carey, solicitor
RESPONDENT
J Tillott, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION

1 The Applicant was issued a Category ABD Firearms Licence under the Firearms Act 1996 (“the Act”) in 2008. That licence was due to expire in 2013. The Commissioner revoked that licence as a result of an incident that occurred during a Christmas party gathering held by the Shoalhaven Hunting Club (“the SHC”) on 12 December 2009 (“the 12 December incident”). Notice of the revocation was served on the Applicant in January 2010. The determination was affirmed on internal review. The Applicant has applied to the Tribunal for external review of that determination.

2 The Applicant also held a Permit to Acquire under the Act, and a Firearms Safety Training Instructor Approval. The permit was revoked, and that approval cancelled, at the same time that the licence was revoked.

3 The Commissioner based his decision upon section 24(2)(b)(ii) of the Act, and clause 19 of the Firearms Regulation 2006 (“the Regulations”), that it is not in the public interest for the Applicant to continue to hold it a licence.

4 While I note that the Applicant denies the Commissioner’s version of the event, I do not understand there to be any dispute as to the allegations of what occurred during the 12 December incident. In her written submissions, Ms Tillott has described the allegations in the following terms:

5 In his written submissions, Mr Carey has described the sequence of events of the 12 December incident in the following terms:

b) The function was to commence at 2.00 p.m. and end at about 5.30 p.m. There was to be a series of target practice exercise or sighting in exercises. There was no competition or competitive shooting taking place.

c) Individuals attended as individual members of the Shoalhaven Hunting Club and essentially conducted their own exercises.

d) Persons accepted the role of “range officer” on an ad hoc basis. Range officers were identifiable as they wore a brightly coloured vest. It was not contested that a yellow vest was the vest that was worn.

e) The applicant attended the range in the morning with his son. Mr Martin junior engaged himself in repairing toilet facilities while Mr Martin senior, the applicant, went about his own business. It was shown, that some time in the day and prior to the formal commencement of the function the applicant wore the yellow vest identifying himself as the range officer.

f) Shooting had commenced prior to the allocated time and Mr Martin had assumed the role of Range Officer.

g) Later Mr Martin took part in shooting exercises. At that time he was not the range officer and did not wear a yellow vest. He used a bench that he had provided and sat in a chair with his rifle on a rest structure he had placed on his bench.

h) It is the appellant's evidence that he fired two shots at a target that he had placed on wooden target frames on the firing line provided for that purpose and built by the members of the club including Mr Martin. There is no dispute that the frames were manufactured by club members.

i) The Range had been opened to allow the firing exercise to take place. Mr Martin fired two rounds from his rifle that he had with him and waited till the range officer closed the range and allowed shooters to go forward to examine their targets. Mr Martin had removed the bolt from his rifle and placed that in his pocket at the same time he also removed the magazine from his rifle and proceeded down range and removed his target. There is no dispute that the range officer had inspected all the firearms on the range prior to declaring the range closed and allowing members to proceed in front of the firing line. Mr Martin's rifle was also inspected in that process. Mr Martin went forward and retrieved his target.

j) Mr Martin then returned to his bench in anticipation of leaving the firing line.

k) The range had opened and members commenced firing again. Mr Martin was in the process of collecting his equipment and leaving the range when he observed that members positioned near him were firing at bottles and pieces of fruit that had been placed on top of the target frames.

l) There was an exchange of words between Mr Martin and the shooters who were targeting fruit and bottles.

m) It is alleged that during this exchange Mr Martin threatened to turn his gun an the offenders.

n) After that exchange Mr Martin collected his rifle and moves his equipment to his motor vehicle parked some way behind the firing line.

o) While moving from the firing line to his vehicle Mr Martin is approached by a member, Mr Lugg, who said to Mr Martin words to the effect of “what did you mean by that ... “. Mr Martin places his rifle in the rear of his utility and walks back to the area of his shooting bench to retrieve the remainder of his equipment.

p) There is a further exchange between Mr Martin and Mr Johnstone at this point Mr Byrne interposes himself between Mr Martin and Mr Johnstone and there is a further escalation of the exchange now between Byrne and Martin.

q) Mr Martin then leaves the engagement at the insistence of his son. Returns to his vehicle and he and his son leave the premises.

6 Section 24(2)(b)(ii) of the Act provides:

7 Clause 19 of the Regulations provides:

19 Revocation of licence—additional reasons

The Commissioner’s case

8 The Commissioner relies on the evidence of a number of witness, each of who were present during the 12 December incident. Ms Tillott has provided a reasonable summary of the evidence on behalf of the Commissioner and I adopt that summary.

Trevor Johnstone
9 Trevor Johnstone reported the matter to Nowra Police on the afternoon of 12 December 2009. On the same day he also wrote to the SHC complaining about the actions of the Applicant, and imploring the Club to investigate the matter. He provided a formal Police statement to a Constable at Nowra Police Station on 7 February 2010.
10 In that statement he said that he heard the Applicant say, “Shut up or I'll turn my firearm on you”. He told Police that he felt intimidated by that remark. He also said that he witnessed the Applicant leave the firing line without his firearm being cleared.

11 Mr Johnstone said that after leaving the firing line he was seated in a chair when the Applicant came up to him and, while poking him in the chest with his finger, said “Shut your mouth or I will punch you in the head”. Mr Johnstone reports that he felt intimidated, and thought the Applicant was going to strike him. He described Mr Byrne intervening and pushing the Applicant away with his body.

Russell Byrne
12 On 14 December 2009, Russell Byrne wrote to the Secretary of the SHC, Allan Lugg, complaining about the Applicant’s actions. Mr Byrne requested the convening of an extraordinary meeting of the SHC Executive to consider the Applicant's behaviour and an appropriate course of action. Mr Byrne wrote that “In 30 years of shooting on Pistol, Full-bore Rifle, and Military Ranges, I have never, ever, witnessed such unsafe and violent actions by an individual such as Gordon Martin.”

13 Mr Byrne provided a formal Police Statement to a Constable at Nowra Police Station on 24 February 2010. In that statement he reported that he had heard the Applicant say, “I will turn the gun on you and pull the trigger”.

14 Mr Byrne said that he watched the Applicant after hearing that threat, as he was concerned for the safety of other persons present. He later saw the Applicant poking Mr Johnstone in the chest as Mr Johnstone was sitting in a chair. He heard the Applicant say, “Shut your mouth or I'll punch your head in.” He stated that he was so concerned for Mr Johnstone's safety that he ran over and put himself between the two men. He reported that as he did so the Applicant said to him “I'm going to punch your fucking head in as well.” He then saw other club members take the Applicant by the arms and remove him from the vicinity. He then took on the responsibility of Range Officer to allow Allan Lugg to leave the firing line and approach the Applicant to speak to him about his behaviour.

Michele Crump
15 Ms Michele Crump also wrote to Mr Lugg on 14 December 2009 outlining her concerns. In that letter she stated that she heard a verbal altercation between the Applicant and Mr Johnstone and that she heard the Applicant threaten to shoot Mr Johnstone if he did not shut up. On 16 February 2009, Ms Crump wrote to Senior Constable Mison of the Firearms Registry complaining about the Applicant's behaviour. She commented on the Applicant’s uncontrolled anger and referred to his conduct at the Annual General Meeting of the SHC which she considered demonstrated a continuation of his inability to control his anger.

Kerryanne and Codyann McCormack
16 Ms Kerryanne McCormack and her daughter, Codyanne McCormack, were both new members of the SHC who were present during the 12 December incident. Both wrote to the SHC on 17 December 2009, complaining about the actions of the Applicant.

17 Kerryanne McCormack stated that she heard the Applicant say he would “take the gun to you.” She found the situation even more frightening when she saw that the Applicant “rose and started walking toward people I don't know by name and began assaulting them by hand contact and barging.”

18 Codyanne McCormack stated that she witnessed an exchange in which she heard raised voices and swearing. During that exchange she heard the Applicant say he would, “take the gun to you”. She said that she signalled to the Applicant to stop his swearing because of the presence of women and children.

Allan Lugg
19 Allan Lugg was the Secretary of the SHC at the time of the 12 December incident. In that capacity he wrote to the Applicant on 14 December 2009. In that letter he referred to the threat directed at Mr Johnstone and the Applicant's failure to have his rifle cleared by the Range Officer. The letter referred to the verbal abuse directed at Mr Lugg as Range Officer, and subsequent physical threats against Mr Byrne and Mr Johnstone.

20 Mr Lugg also outlined other incidences of the Applicant’s aggressive, abusive and inappropriate behaviour, and listed four separate incidents involving the Applicant that were known to the SHC.

21 On 28 December 2009, Mr Lugg wrote to the Firearms Registry in his capacity as Secretary of the SHC reporting that the Applicant had resigned as a member of the SHC. That letter records that the club was in the process of taking disciplinary action against the Applicant, although his resignation had made this unnecessary. The letter stated that the SHC supports the decision of the Firearms registry to cancel the Applicant's licences.

22 On 18 February 2010, Mr Lugg provided a statement to the Firearms Registry about the 12 December incident. He recounted hearing the Applicant say “You shut your mouth or I'll take the gun to you.” Further, he described being pushed aside when he attempted to check the Applicant's rifle prior to him leaving the firing line.

23 Mr Lugg made a formal Statement to Police at Nowra on 6 March 2010.

24 Mr Lugg stated that he did not press the issue of rendering the rifle safe, as the Applicant was clearly agitated, and he wanted the Applicant to settle down before talking to him. Mr Lugg also witnessed the second incident between the Applicant and Mr Johnstone. He said that the Applicant appeared to be threatening to punch Mr Johnstone. Mr Lugg spoke to the Applicant and asked him what he meant by what he had said to Mr Johnstone. He stated that the Applicant tried to downplay what he had said, suggesting it was of no consequence.

25 The Commissioner relies on Affidavits provided by a number of persons who were present during the 12 December incident.

Luke Tyrrell
26 Luke Tyrrell was on the firing line with the Applicant and others. He was shooting at oranges. He said that they more accurately display the effect of various types of ammunition than paper targets. His father had earlier placed a purpose built frame designed for this purpose over the underlying frame to protect it. He was present with a new member who he was introducing to the Club.

27 He stated that the Applicant became abusive toward him. Mr Tyrrell tried to explain that he was not damaging the frame, as his own frame had been installed earlier in the day. He described the Applicant as being so angry that spit was coming out of his mouth, and his face was red.

28 Mr Tyrrell said that the Applicant is “well known for these outbursts, but I was concerned when it went on for so long. We tried to explain, but Gordon didn't listen.” He said that he heard the Applicant say to Trevor Johnstone, “If you don't shut up, I'll turn the gun on you.”

29 Mr Tyrrell said that the new member located beside him on the firing line began packing up to take his family and leave, as he was “concerned there was an old bloke in a rage that had just threatened to shoot someone.”

30 Mr Tyrrell said that a short time later he saw the Applicant near Trevor Johnstone. He said, “He stood over the top of Trevor, who was still sitting down. It was five to ten minutes since the incident started, and Gordon was still in a rage. He said to Trevor, “Speak to me like that again, and I'll knock your block off.” Mr Tyrrell described the anger of the Applicant as “frightening” and that he was really worried about the Applicant's behaviour. He also complained about the Applicant's behaviour to various club and committee members a short time later.

Peter Tyrrell
31 Peter Tyrrell explained how he purpose built a frame designed to be installed over the regular target frames to enable soft targets such as oranges to be affixed to the top. He said that it provides variety from papers targets.

32 Mr Tyrrell said that he heard the Applicant start to yell at his son, Luke Tyrrell, about shooting at the frames. He could hear this even though there was shooting going on, and he was wearing hearing protection. He said that he told the Applicant that his own target frame was installed over the original frame, but that the Applicant didn't listen. He said that he fears the Applicant has difficulty with his eyesight, and couldn't see the additional frame.

33 Mr Tyrrell said that he resumed shooting and that he heard the Applicant yelling and said that the Applicant had a “loud and aggressive manner”. He said that he heard the Applicant say “I'll turn the gun on you” but he didn't know to whom the threat was directed. He got to his feet immediately, as he feared the threat had been directed at his son, Luke. He looked, but was unable to see who the Applicant had been speaking to. A short time later he saw the Applicant and Allan Lugg in an argument. He said that he saw the Applicant carrying his rifle in what he described as an unsafe manner.

34 Mr Tyrrell said that he formed the view that Mr Lugg was attempting to inspect the Applicant's rifle before he left the line. He said that he saw the Applicant put his arm up and make a gesture that made him believe the Applicant had pushed Mr Lugg. Mr Tyrrell did not see the second incident involving the Applicant and Mr Johnstone.

Jim Booth
35 Jim Booth has been a member of the SHC for over 20 years. He described the duties of the Safety Officer clearing firearms before persons are allowed to move off the firing line.

36 He is familiar with the target frame owned by the Tyrrells that they install over the original frame when shooting fruit. He has seen Peter Tyrrell use the frame before. He stated that he saw the Tyrrells using their target on 12 December. He heard the Applicant start to yell and swear at them, accusing them of damaging the target.

37 He heard others remonstrate with the Applicant, and try to explain about the target installed over the original. He said that he has heard Peter Tyrrell have this out with the Applicant twice before and that Peter Tyrrell has explained to the Applicant that he has placed his own frame over the target. He stated that when the Applicant gets like this, “there is no reasoning with him”. Mr Booth said that the Applicant wouldn't stop “abusing people and swearing” and he heard a woman who he believes is the daughter of Peter McCormack ask him to stop.

38 Mr Booth said that he believed that it would be prudent to watch the Applicant while he was in possession of firearms in an agitated state. He described the Applicant leaving the firing line with his rifle in his hand, “swinging it about, including back towards me with the muzzle held at various angles”.

39 Mr Booth remembers hearing the Applicant say to Trevor Johnstone, who remonstrated with him over the noise he was making, “I will turn the gun on you.” He said that he saw the Applicant argue with Allan Lugg, who was performing duty as the Safety Officer. He heard the Applicant swear at Mr Lugg when he attempted to clear his rifle, and then saw him push Mr Lugg in the shoulder and brush past. As a result, the Applicant's rifle was not formally cleared before he left the line. He said that the Applicant had been “continually swearing and behaving in an agitated manner for about 20 minutes, and he seemed to get more aggravated, rather than calming down”.

40 He said that later he was with Trevor Johnstone and others behind the firing line when the Applicant returned. He saw the Applicant stand about two to three feet from Mr Johnstone. In addition to yelling and swearing, he “had his fists held up at chest level” and said to Mr Johnstone “I will bash you.” He saw Mr Byrne intervene by interposing himself between the men.

Stephen Tanner
41 Stephen Tanner is a member of the SHC. He and his 15 year old daughter were present during the 12 December incident. He said that he arrived after lunch and that on arrival he saw that the Applicant was involved in an altercation with a man. He said that the Applicant appeared angry at the time he observed him. The men he saw were standing well back from the firing line. The Applicant was standing close to the person he was arguing with. His voice was raised. Mr Tanner said that he “thought it was just Gordon being Gordon. He often gets cranky, and he can get pretty fiery.”

Jeffrey Rose
42 Jeffrey Rose is both a member and committee member of the SHC. He described the safety rules in place during the 12 December incident, including the duties of the Safety Officer. He recalled that the job of Safety Officer was shared by the SHC members during the day.

43 He said that at around 2.30 pm he heard raised voices on the firing line. He saw that it was the Applicant yelling at members of the Tyrrell family. He heard the Applicant complain about persons shooting at oranges or potatoes on top of the target. Mr Rose stated that the Applicant raises his voice at every function, so he didn't pay much attention at first. He heard Trevor Johnstone remonstrate with the Applicant. He said that he heard the Applicant say in reply “I should take a gun to you” or “I ought to take a gun to you.”

44 Mr Rose stated that he saw Allan Lugg attempt to clear the Applicant's firearm when he left the firing line. He heard the Applicant swear at Mr Lugg who in reply, “was calm and quietly spoken.”

45 He said that he later saw and heard the Applicant arguing and that people were attracted by the noise the Applicant was making. He described the Applicant as “really raging, he was off the planet with rage,” and “people were trying to calm him down”. He heard someone say to the Applicant, 'You want to cut out your swearing, Gordon, there's women and kids here.”

Rebecca Byrne
46 Rebecca Byrne is a committee member of the SHC. She was present during the 12 December incident with her father, Russell Byrne, and other family members. She was near the firing line when she heard the Applicant, who was on the firing line, say, “I'll turn this gun on you.” She saw that the remark was directed at Trevor Johnstone. She said that when the Applicant got up to leave the firing line he was approached by Allan Lugg who attempted to clear his firearm. The Applicant was still angry, and said something like “get fucked, I know what I'm doing” before he “stormed off to his car”.

47 Ms Byrne said that she saw the Applicant return and he started “yelling and verbally harassing Trevor”. She feared the Applicant was going to assault Mr Johnstone and she saw her father hurry over and get between the two men. She saw the Applicant poke her father with his finger. She stated that she feared the Applicant would hit either Mr Johnstone or her father. She described the Applicant as “loud, and continually abusive,” during the incident.

48 Ms Byrne then described another incident involving the Applicant that occurred at a committee meeting of the SHC on 21 January 2010. Her notes from the meeting recorded that the Applicant barged into the meeting at 7.32 pm. He was not allowed to attend the meeting as he had resigned from the club and committee members asked him to leave.

49 She said that at around 8.25 pm she was outside the meeting room when the Applicant approached her and said “The only reason you are on the committee is so you can report back to other people” and “I'll make sure I get you and your father.” Ms Byrne described the Applicant as trying to “tower over me” and stated that he “stood in my personal space” while making the threat. Ms Byrne reported the threat to the committee members at the meeting, and it was minuted.

Behaviour alluded to in other evidence
50 On 12 December 2009, Trevor Johnstone wrote to Greg Doran, President of the SHC. In his letter he wrote that “This behaviour is not out of character for Mr Martin who recently made a menace of himself at the Annual General Meeting in October 2009”.

51 In his 14 December 2009 letter to the SHC, Russell Byrne wrote that a number of incidents had occurred since the Applicant joined the SHC. He expressed the view that while the Applicant stays a member of the SHC, “people’s safety and lives will be compromised”.

52 In her letter to the SHC Ms Crump referred to the Applicant's forceful attitude and anger displayed at the SHC’s 2009 AGM, and she referred to the Applicant venting his anger on club members in the few months prior to her letter.

53 In his affidavit, Luke Tyrrell stated that “Gordon is well-known for these outbursts”.

54 In his affidavit, James Booth stated that “When Gordon gets like this, there is no reasoning with him”.

55 In his affidavit, Jeffrey Rose stated that “Gordon raises his voice at every function we have”.

The Commissioner’s response to the Applicant's case

56 In her written submissions, Ms Tillott addressed the evidence provided in support of the Applicant’s case. She submitted:

101. They appear behind Tab 9a in the s 58 documents. Of note, the letter purporting to be authored by Robert Brennan appears to have been written in the same hand as the letter signed by Gordon Martin requesting internal review.

Robert Brennan

102. In his letter to the Firearms Registry, Mr Brennan recalls a "discussion that became heated at times" and seeing a third person, "who had no right to to (sic) involve himself forcible (sic) tried to push Mr Martin backwards." He describes seeing Allan Martin, son of the Applicant, intervening and taking his father away.

103. Mr Brennan later provided an affidavit which was served on the Respondent on 15 June, 2010. He included some photographs he had taken of the day. He states he had not previously attended any club function, or met any club members.

104. In his affidavit he refers to photos in which he identifies Allan Lugg. He states the photos, in which Mr Lugg is not wearing the reflective orange vest of the Safety Officer, suggest that Mr Lugg was "not wearing a safety vest as he claims". (Para 6, affidavit of Robert Brennan)

105. However, Mr Lugg and a number of other witnesses have maintained that the role of Safety Officer was rotated amongst various club members during the day. In his statement sent by email to the Firearms Registry on 18 February, 2010, Allan Lugg stated in para 2, "I was performing the duties of Safety Officer. I was wearing an orange safety vest to identify me as the person performing the role of supervising safety."

106. In para 11 of the Police statement of Russell Byrne, he states, "I took over being the range officer and Allan Lugg walked to where Gordon Martin was standing".

107. Luke Tyrrell states, "All day different club members were allocated to act as a range safety officer." (para 4, affidavit of Luke Tyrrell)

108. Peter Tyrrell states, "Allan was the safety officer, responsible for people entering and leaving the firing line." (para 10, affidavit of Peter Tyrrell)

109. James Booth states, "I had my firearm cleared by the Safety Officer" and "The Safety Officer was a club member wearing a reflective orange vest." (Para 5, affidavit of Jim Booth)

110. Jeffrey Rose states, "The Safety Officer wore a reflective orange vest, and the job was shared by a couple of different members during the day." (para 3, affidavit of Jeffrey Rose)

111. Although Mr Brennan disputes that Mr Lugg was wearing a reflective orange vest, he does recall that a Safety Officer was actively supervising the shooting. (Para 13, affidavit of Robert Brennan)

112. Mr Brennan states he heard the Applicant say to another shooter, "Hey, I build those frames, what you're doing is destroying them." He further states he heard the Applicant refer to another shooter as a "dickhead." However, he goes on to say, "The chap that Gordon was ta(l)king (sic) to did not raise his voice." (Para 14, affidavit of Robert Brennan)

113. This is consistent with the respondent's witnesses that no-one, apart from the Applicant, raised their voice or acted aggressively during the incident.

114 Mr Brennan describes hearing Trevor Johnstone speak to the Applicant, and he saw the Applicant reply, although he did not hear what was said. (Para 14, affidavit of Robert Brennan)

115. If Mr Brennan did not hear the exchange between the Applicant and Mr Johnstone, he is unable to give evidence that the threat alleged to have been made by the Applicant to Mr Johnstone was said or not.

116. In his oral evidence, Mr Brennan described how his first letter which was sent to the Firearms Registry came into existence; that it was written by the Applicant and he then signed it. He also confirmed that the photographs on which a number of other witnesses were closely cross examined were actually taken prior to 12.30pm.

117. He confirmed that Allan Lugg was walking and talking with the Applicant as he left the firing line, and further, he formed the view the conversation was about clearing the rifle. "Allan Lugg was talking to the Applicant as they walked asking to see the rifle." (Para 1 6, affidavit of Robert Brennan.)

118. Of particular importance, he recalls the Applicant leaving the firing line in the midst of shooting, contrary to the Applicant's own version.

Greg Evelyn

119 Greg Evelyn, in his letter received by the Firearms Registry on 18 January, 2010, has described observing a "heated discussion" between the Applicant and another member, but no misconduct on the part of the Applicant. He states "At no time was there threats or a loaded firearm, or unloaded, in the vicinity."

120. This is disingenuous, as there were numerous firearms present at the property and in the vicinity. They were in the possession of shooters, being used on the firing line, and stored in vehicles.

121. Mr Evelyn's account describes only one incident. It appears from the description he is referring to the second incident between the Applicant and Mr Johnstone that occurred behind the firing line. The witnesses have all agreed this second incident occurred after the Applicant had taken his firearm to his car.

122. Mr Evelyn does not describe seeing the Applicant on the firing line. It would seem Mr Evelyn is unable to give any evidence about what may or may not have occurred during the first incident between the Applicant and Mr Johnstone. His account of a "heated discussion" is consistent with the witnesses for the Respondent.

Manfred Pilz

123. Manfred Pilz, in his letter dated 3 January, 2010, and received by the Firearms Registry on 18 January, 2010, states he witnessed a "pit (sic) of discrepence (sic) among people, a pit (sic) of shouting, name calling, end (sic) words were exchange (sic)." He further states, "But no visible danger in any way, from Gordon Martin to any other member of the hunting club was witnessed by me." (Tab 9a - S58 docs)

124. A further letter from Manfred Pilz was served on the Respondent on 15 June, 2010. That letter was, like the previous one, also dated 3 January, 2010. In it he describes seeing two members, not known to him, shooting oranges. He heard "lots of lautspicking (loud speaking?)" He says he heard the Applicant saying he was very upset. However, he didn't hear "a word with the meening (sic) of sambody (sic) be shoot, or hurt was said." Mr Pilz does refer to the Applicant as "maybe a bit outspoken." (Letter of Manfred Pilz served 15/6/10)

125. Noting the language used in the letters of Mr Pilz, it is obvious English is not his first language. He recounts what is apparently an argument. He refers to the Applicant as outspoken, and recalls hearing him say he was very upset.

126. The account given by him is consistent with the Respondent's case that a disagreement involving the Applicant took place at Burrier.

John Hopcroft

127. John R Hopcroft, in his letter dated 5 January, 2010, and received by the Firearms Registry on 18 January, 2010, states he was "beside Gordon Martin and at no time did I see Gordon Martin threaten anyone with a firearm or anything".

128. Mr Hopcroft does not say when he was standing next to Mr Martin. This account is at odds with the Applicant's other witnesses. Mr Brennan, for instance, heard the Applicant call another shooter a "dickhead." Mr Evelyn heard a heated discussion involving the Applicant. Mr Pilz heard lots of loudspeaking, a bit of name calling and shouting. Yet Mr Hopcroft initially reports that, although he was next to the Applicant, he didn't hear a threat, and no other description of events.

129. In a letter provided to Police at Nowra, coincidentally also dated 5 January, 2010, Mr Hopcroft expanded on his previous letter. Once again he refers to being beside the Applicant, but "at no time did I see Gordon threaten anybody with a firearm or anything". He also said, "When Gordon left the range his weapon had been cleared, bolt removed, ammunition removed, and muzzle facing down range."

130. It is hard to escape the conclusion that this second letter, dated the same as the first, was written specifically to provide a version designed to minimise the Applicant's breach of safety protocol when leaving the firing line by suggesting that the Applicant's weapon was unloaded. The account of Mr Hopcroft is remarkably devoid of detail when considering it was written by a person who was beside the Applicant on the firing line.

131. A statutory declaration by Mr Hopcroft dated 3 June, 2010, was served on the respondent on 15 June, 2010. In this third document Mr Hopcroft now concedes, "an argument broke out between the two parties". Mr Hopcroft states, "at no time while I was present did Gordon Martin or the other parties threaten each other with a firearm, it was just an argument." And later "a disagreement".

132. Mr Hopcroft states, "Gordon's weapon had been cleared, muzzle facing down range, and bolt removed, his back was to his firearm". Although Mr Hopcroft does not say in his statutory declaration when he saw the Applicant with his muzzle pointed down range and his back to his firearm, it would be reasonable to assume that he was describing the Applicant at his shooting rest on the firing line.

133. Taken in context with the earlier part of his letter, it would appear Mr Hopcroft is describing an argument between the Applicant and others that occurred on the firing line while the Applicant was facing in a direction other than down range. This is consistent with the Respondent's case that the Applicant was arguing with other shooters, including Mr Johnstone, while on the Firing line.

134. Similarly to his second letter, Mr Hopcroft is at pains to point out that the Applicant's firearm had the bolt removed etc., thus attempting to minimise his later breach of safety rules when leaving the firing line.

Matt Delaney

135. Mr Delaney wrote a letter on 6 January, 2010. A copy was received by the Firearms Registry on 18 January, 2010. He claims "Gordon Martin was falsely accused of allegations which were falsely taken out of context". He states he witnessed, "an exchange of words between two people and was nothing more than a reference to leaving the venue"

136. Mr Delaney appears to be minimising the actions of the Applicant. He doesn't make clear what were the false allegations, and how, if they were originally false, they were taken out of context. His letter, like the others provided to the Firearms Registry on behalf of the Applicant, lacks the detail that could reasonably be expected from a person who witnessed the incident at Burrier on 12 December, 2009.

Allan Martin

137. Allan Martin is the son of the Applicant, Gordon Martin. He wrote a letter which was received by the Firearms Registry on 18 January, 2010. Mr Martin jnr acknowledges that he was "not immediately involved in the discussion".

138. This is consistent with accounts from witnesses that Allan Martin was not present during the incidents complained of, but was engaged in fixing the toilets on the property.

139. Luke Tyrrell in his affidavit states, "Someone called Gordon's son, Allan, over to take him away. I hadn't seen Allan until he tried to calm his father down near the cars. I don't believe he was on the firing line or in the vicinity of the first incident". (Para 16, affidavit of Luke Tyrrell)

140. Jeffrey Rose said, "His son, Allan, came over and tried to calm him down as well. I'm not sure where Allan came from. He wasn't on the firing line when this happened, but I know he was fixing the flushing mechanism in the toilets during the day." (Para 9, affidavit of Jeffrey Rose)

141. James Booth said, "I think his son came and took him away." (Para 16, affidavit of James Booth)

Gordon Martin

142. In an affidavit dated 6 June, 2010, and served on the respondent on 15 June, 2010, the Applicant states he wore the reflective vest and acted as Safety Officer shortly after arriving at Burrier at the request of Allan Lugg. (Para 4, affidavit of Gordon Martin)

143. He was Range Officer until about midday, then relinquished the role and began setting out his equipment in preparation for shooting from the firing line. (Para I and 2, affidavit of Gordon Martin)

144. Later, according to the Applicant, "The range officer declared the range open," but he does not name the range officer at that time. (Para 6, affidavit of Gordon Martin)

145. According to the Applicant, he fired two shots only, and began to pack up his equipment. This included a shooting bench and chair as well as his firearm. He states that he then noticed persons nearby had placed oranges and bottles on a frame. He remonstrated with them (Para 9, affidavit of Gordon Martin)

146. In the Applicant's account he responded to a provocation from the other shooters with the words, "they should take all guns off imbeciles like you".

147. The Applicant claimed the words were not directed at Trevor Johnstone, who he acknowledges was on the firing line, but at other shooters.

148. These words are similar to the words heard by the witnesses in the respondent's case. However, each of those witnesses state they clearly heard words in the form of a threat similar to "turn the gun on you."

149. It is the Respondent's submission that, once he realised the gravity of what had occurred, the Applicant has created a version designed to minimise his actions, and take the sting out of what he said.

150. However, he knew he was facing overwhelming evidence to the contrary, and he has manufactured a version of the words designed to be similar enough to raise a doubt about the witness's versions.

151. However, none of those witness' accounts were vague or non-specific. The actions of each of them in feeling fear, making complaints to committee members, writing to the Club, reporting the incident to Police, bringing the matter up at committee meetings, writing to the Applicant and writing to the Firearms Registry are not the actions of persons who were unsure about what they heard.

152. The letter sent by Allan Lugg to the Applicant on behalf of the SHC on 14 December, 2010 contained an account of the complaint alleged against the Applicant by the various witnesses. That account has not changed. In fact, it is supported by other independent evidence, such as the letters from Kerryanne McCormack and her daughter, written to the SHC to complain about the Applicant's behaviour, and the various accounts contained in affidavits now in evidence.

153. The Applicant then claims he removed the bolt from his rifle and walked to his car. As he had earlier acted as Range Officer, he would have been aware of the safety protocol in place requiring him to have his firearm cleared before leaving the firing line, but he failed to do so. (Para 11, affidavit of Gordon Martin)

154. The Applicant recalls Allan Lugg repeatedly saying, "What did you mean, what did you mean?" as he was walking to his car. He further recalls Mr Lugg saying, "You threatened Trevor Johnstone," which the Applicant denied. (Para I I, affidavit of Gordon Martin)

155. The Applicant would have us believe that Mr Lugg's urgency was provoked by the comment in para 141 above. It is unlikely that benign comment, made in the context described by the Applicant, would have provoked that reaction from Mr Lugg. It is submitted the Tribunal could be confident Mr Lugg was in no doubt that a threat was made to Trevor Johnstone from the Applicant while on the firing line.

156. In relation to the second incident, the Applicant stated that he approached Mr Johnstone, but said only, "Make sure of your facts before you go making accusations." He describes Russell Byrne intervening, complaining that he, Byme, was ranting and raving in a loud and incoherent manner. Of note, the Applicant is the only person who has attributed that behaviour to Mr Byrne.

157. The Applicant claims he was in fear of being struck by Byme, and said, "Get out of my face, I won't be responsible for what might happen."

158. In contrast, the account of James Booth states, "It was only the common decency of the other people present that prevented a very dangerous situation. Luckily no-one escalated the situation. No-one raised a hand or made a threat to Gordon. Only one person made a threat or behaved aggressively, and that was Gordon. It was a very ugly scene. (Para 17, affidavit of James Booth)

159. In the account of Jeffrey Rose, he states, referring to the Applicant, "People were trying to calm him down, not join in". (Para 8, affidavit of Jeffrey Rose)

160. In the account of Rebecca Byrne she states, "A short while later Gordon came back. He started yelling and verbally harassing Trevor, who was off the firing line by this time. He was still yelling about the targets. I was about to say, "Break it up," to Gordon because I thought he might hit Trevor when I saw my Dad hurry over and get between them. Gordon started poking at my dad with his finger." (Para 6, affidavit of Rebecca Byrne)

161. In his Police Statement Russell Byrne states, "I saw Gordon Martin poking Trevor in the chest with his finger". (Para 9 - Russell Byrne Police Statement)

162. And later, "I ran over to Trevor Johnstone and Gordon Martin and clearly heard Gordon Martin say to Trevor Johnstone, "Shut your mouth or I'll punch your head in." I put myself between Trevor Johnstone and Gordon Martin". (Para A 0 - Russell Byrne Police Statement)

163. The Respondent's witness accounts do not support this portion of the Applicant's version. The accounts of the Applicant's witnesses are silent on the subject, or lacking in specificity and detail.

164. According to the Applicant's affidavit, Allan Lugg was not the Range Officer that day at Burrier. According to the Applicant, only he and Russell Byrne acted as Range Officer. (Para 19, affidavit of Gordon Martin)

165. In relation to leaving the firing line without his firearm being cleared, the Applicant gives an account of setting up all of his equipment, including a shooting bench and chair, firing two shots, then having his rifle cleared by a Range Officer who he does not name. He then claims he went forward to check his target. (Para 7, affidavit of Gordon Martin)

166. However, the Range Officer must, by implication, have been Russell Byrne, as the Applicant claims only himself and Byrne acted as Range Officer that day. (Para 19, affidavit of Gordon Martin)

167. Byme himself does not give this evidence, nor do any of the other witnesses. In fact Byrne gave evidence that he didn't arrive at Burrier until 2 pm, and could not possibly have been the Range Officer as described by the Applicant in his affidavit.

168. After checking his target, the Applicant states he returned and began disassembling his rifle preparatory to leaving. (Para 8, affidavit of Gordon Martin)

169. The Applicant states he packed his equipment and then left the firing line, apparently relying on the clearance of his rifle prior to going forward to check his target as satisfactory compliance with the safety conditions in place at the time. (Para 11, affidavit of Gordon Martin)

170. The Respondent's witnesses have all stated that clearing of firearms was to take place prior to leaving the firing line. Contrary to the Applicant's account, in his statement forwarded to the Firearms Registry and dated 17 February, 2010, Allan Lugg recounts that the Applicant made a threat to Mr Johnstone, then, "almost immediately Mr Martin started to pack up his shooting gear. He unloaded his rifle and removed the bolt. He appeared to have made a decision to leave. He then picked up his rifle and turned back towards me. I raised my hand and indicated that I wished to check that his rifle was safe before he returned it to his vehicle. Mr Martin pushed me aside and walked past me and as he did so he told me in a loud voice to "piss off.""

172. Mr Lugg confirmed that version in his oral evidence.

173. The Applicant, according to Mr Lugg, then put his rifle in his car and returned to pack the rest of his gear including his shooting stand and ammunition. A few minutes later, during a cease fire, Mr Martin went forward to check his target with other shooters. (Tab 9f - s58 docs - Statement of Allan Lugg - 17 February, 2010)

174. At the conclusion of his affidavit, the Applicant denies making any threat, and denies being spoken to about having his rifle cleared.

175. The Applicant gave oral evidence. It was suggested during his evidence that the Applicant is hard of hearing, and for that reason he habitually speaks loudly. Of note, he did not appear to have any hearing difficulty during the giving of his evidence. It is the Respondent's submission, however, that he was short tempered, and quick to anger.

176. The Applicant described how the letters from various witnesses and supplied by him to the Firearms Registry and later served on the Respondent came into existence. It is the Respondent's submission that his explanation was less than credible.

177. It is apparent the Applicant views the actions taken by the club and it's various members as personally motivated and vindictive. However it is apparent the members felt grave concern at the actions of the Applicant on I2 December, 2009, and, despite having tolerated the Applicant's aggressive and abusive behaviour in the past, they felt compelled to act on this occasion.

57 Ms Tillott submits that the Tribunal would be satisfied that the evidence from the Respondent's witnesses about the 12 December incident is convincing and persuasive. She says that in contrast, the evidence from the Applicant's witnesses appears contrived and vague.

58 She contends that the Applicant has demonstrated a course of conduct that causes the Commissioner concern. She submits the Applicant has not acted responsibly on a number of occasions. As an experienced shooter the Applicant should model safe and moderate behaviour. His lack of control and aggressive threats, combined with his cavalier attitude to firearm safety, must give rise to the view that he does pose a risk to the public. He appears, by all accounts, to be unable to control his temper. He is prone to outbursts of rage and abuse. His history of reacting angrily to frustration or disagreement is alarming. These stressors will continue to occur throughout all his interactions with club members and members of the public generally.

59 She says that the Applicant is highly trained and experienced in the safe handling and use of firearms, yet he ignores basic safety rules when he is frustrated or angry. He has a cavalier attitude to safety and contempt for those who attempt to ensure safe use of firearms when he is in disagreement with them. He demonstrates no insight into his own condition, as evidenced by the repeated incidents of inappropriate behaviour.

60 For all of these reasons, she submits that the correct and preferable decision was the decision to revoke the Applicant's licences, and asks the Tribunal to affirm that decision.

The Applicant's case

61 The Applicant relies on his own evidence and that of a number of witness, each of who were present during the 12 December incident. There is conflicting evidence about what actually occurred during the 12 December incident. In particular the Applicant relies on the evidence of Mr Brennan, Mr Hopcroft and Mr Pilz.

62 Mr Carey has provided written submissions in which he has provided a reasonable summary of the Applicant’s version of events and commented on the evidence presented in support of the Commissioner’s case. Referring to each aspect of the sequence of events, Mr Carey submitted:

b. The shooting that took place was of a type that could be described as “target practice”, or “sighting in”. The number of shots that were undertaken by shooters was not dependent upon any programme or event but was solely at the discretion of each shooter.

c. The shooters did not have to register their attendance other than for the purposes of compliance with Firearm Registry and shooters licence participation requirements.

d. Mr Martin was range officer in the early part of the day. A photograph was taken in which Mr Martin is identified wearing the distinctive coloured vest of a Range Officer. There is no dispute that Mr Martin is (or was) accepted as Range Officer. There was evidence given by Mr Martin that went untested that he held various positions including but not limited to Feral Animal Pest Control Officer number 50353 and also Game Council R Licence Testing Officer agent number 7205.

e. Mr Martin and his son attended the range in the a.m. The evidence was that he and his son were amongst the first to arrive. Mr Martin's evidence was the he unlocked the gate using a key that he been provided with by the land owner. Mr Martin's son was engaged in repairing the toilet block while Mr Martin senior went about setting up the BBQ and the tentage that went with that.

f. Mr Martin had assumed the role of range officer and there is no dispute that he was proficient in that role, that he was aware of the procedures and that his skill and knowledge was widely accepted within the management of the club. There was uncontested evidence that Mr Martin conducted firearms training courses for new members and that the club accepted him in that role. Mr Martin relinquished the role of range officer when he decided to participate in a shooting exercise.

g. Mr Martin set up a bench on the firing line and on that he positioned a rest for his rifle. There is photographic evidence of Mr Martin seated at his bench. The firing line was delineated by the placing of coloured material on the ground and there was also a raised line of cord suspended between posts place at the ends of the firing line. Both the cord on the ground and the raised cord are red in colour. Members of the club brought with them various accessories. Some brought tables and chairs to shoot seated, others chose to lie upon the ground and shoot in that position. There is adequate photographic evidence to show that the shooters used various support mechanisms,

h. The range consisted of a marked firing line and a target area. The evidence was the target area was about 50 metres away from the firing line. The target area had wooden frames erected and attached to those frames were the targets of the shooters. There was uncontested evidence that the frames were manufactured by club members using club funds. It was not disputed that Mr Martin was involved in the manufacture and delivery of the target frames.

i. Mr Martin was seated at his bench and fired two shots from one rifle, he had only one rifle with him. There was no dispute that Mr Martin only fired two shots. One witness, Mr Tyrrell said in his evidence that Mr Martin had 10 or 12 guns with him, referring to the amount as “lots of guns”. The witness admitted that he did not see more than one gun and further that he did not know how many guns Mr Martin had. That same witness further admitted in cross examination that he heard that Mr Martin had lots of guns with him. Mr Martin finished firing his rifle. He was photographed, by Robert Brennan, taking the bolt and magazine from the rifle. He was not seen to put the magazine or bolt back into the rifle. The Range Officer Mr Lugg said in his evidence that he inspected all the firearms before the shooters were permitted to go forward of the firing line. Mr Martin's rifle was inspected at that time as part of that process and was seen to be unloaded with magazine removed, the bolt removed and no rounds in the chamber of the rifle. Mr Martin and other shooters went forward to inspect and if satisfied to retrieve their targets, Mr Martin had seen the fall of shot of his rifle by looking through the rifle telescopic sight and had already determined that he had fired as many rounds as was needed to confirm the accuracy of the rifle. Mr Martin went forward to retrieve his target and once he had done that he returned to the bench. It was in evidence that Mr Martin was amongst the last to return to the firing line spending some time at the target area. There was no evidence about what Mr Martin was doing at the target area other than to say that he was in the company of another member. It was not contested that Mr Martin removed his target and returned to the firing line.

j. Mr Martin returned to his bench to collect his firearm and leave the firing line. While gathering his equipment in preparation for leaving Mr Martin observed that shooters positioned near him were shooting at bottles and oranges on the top of the target frames. One witness said that the bottles and oranges had been placed on the ground. (That was the same witness that said Mr Martin had lots of guns with him). The evidence of My Tyrrell in general was stilted to divert attention away from himself and his activities and to pad out the allegation against Mr Martin. The evidence of Tyrrell is not credible and should be dismissed entirely. The evidence of the location of the fruit and bottles being on the ground must be ignored as it simply not consistent with any other evidence. The reason that same witness gave for shooting at oranges and bottles was to test the effect of various ammunition on such objects. That scientific approach to ballistics is simply rubbish. The fact of the matter is that the shooters who were shootings at bottles and oranges were skylarking about. The oranges and bottles were on the frames and were positioned on top of the frames. One must have some doubts about the veracity of any of the evidence of that club member noting he was also the same witness who told Police that Mr Martin had 10 guns with him.

k. It is not disputed that people were firing at fruit and bottles. That activity was observed by Mr Martin. Mr Martin also observed the persons who were shooting at the bottles and oranges.

l. Mr Martin says that he told the people that were shooting at the fruit to stop because they were damaging the frames. He was told to shut up and referred to as an old bastard. The exchange went on with Mr Martin claiming that he said words to the effect of “dickheads like you shouldn't be allowed to have guns”. It was Mr Martin’s evidence that the conversation was between brothers Luke and Peter Tyrrell and himself. He says that he said “you bloody idiot, the targets are between the frames, look at the damage you're doing.” He says that the Tyrrells replied in words to the effect of “shut up you old bastard, I'm here to shoot not listen to you rave on.”. The evidence of Mr Martin is that he then said “they should take all guns off idiots and imbeciles like you”. Mr Byrne embellishes the conversation by saying that he heard Martin say to Trevor Johnstone “I will turn the gun on you and pull the trigger.” There is no evidence that Mr Martin said he would pull the trigger. The evidence was that Martin's conversation was directed at the Tyrrells.

m. The complainants say that Mr Martin said that he would turn his gun on them. That evidence is not supported by a number of witnesses who wrote to Police and also to the Firearms Registry. In particular the evidence of Mr Brennan, who was a first time attendee at the range and who was taking photographs. Mr Brennan says that he heard most of the exchange between Mr Martin and the Tyrrells and heard much of the spoken word. Mr Brennan gives evidence in his affidavit and from the witness stand that that he did not hear Mr Martin threaten any person and the firearm was not pointed at any person. It should be noted at this point that firing was taking place. The shooters and the onlookers were or should have been using hearing protection devices. One Police witness said he could hear the conversation. Other witnesses admitted they could not hear all the conversation. Mr Martin denies that has said he would turn his gun on anybody. There was a statement from Manfred Pilz in which Mr Pilz said that Mr Martin made no threat at all.

n. Mr Martin picks up his firearm and some equipment to leave the range. It now alleges that he waved the gun around. The allegation by one witness was that the gun was loaded. There was nothing to substantiate that at all. The affidavit of Mr Lugg says that he can't remember the position of Mr Martin's rifle other than to say the rifle was on the bench pointed down range. Allan Lugg also says that he saw the Appellant unload the rifle and remove the bolt. It is submitted that Mr Lugg saw that but not at that time. It is submitted that Mr Lugg saw the rifle being unloaded at the completion of the previous shooting phase. There is no evidence that Mr Martin had loaded his rifle after having been previously cleared by the range officer. Mr Martin had removed his target and there was no evidence that he had commenced to fire again. Indeed there is no evidence that Mr Martin loaded his rifle. There is evidence that Mr Martin removed the bolt, the magazine and placed them in his pocket. There is evidence that the range officer had previously inspected the rifle and confirmed that it was not loaded. There was evidence from Mr Byrne that the appellant threatened his partner and his children. Again that evidence was debunked by others who were there. It is simply not true. In fact the Byrne statement says that as this “unsafe” firearm holding was taking place Mr Martin was not holding his firearm safely but in the very next sentence of the statement says that Martin “then turned from the firing line”. That is inconsistent with the allegation that he was waving his gun around while having that conversation with the Tyrrells. The evidence of Mr Brennan, Mr Hopcroft and Mr Pilz have one thing in common, they all say that there was no unsafe action by Mr Martin with his rifle. The evidence of Mr Brennan has a ring of truth to it as he did not know any of the people there on that occasion as it was his first visit to a club function. Mr Brennan took photographs of the day and those were tendered in evidence without challenge. Mr Lugg also cannot say where the rifle as pointed.

o. As Mr Martin is leaving the firing line he is approached by Mr Lugg. There is conflicting evidence about who was the range officer at that time. The witnesses could not agree if it was Mr Lugg or Mr Byrne. It was Mr Lugg who approached Mr Martin. There is conflicting evidence about what was said and it is the evidence of some who did not hear the words who assumed Mr Lugg was talking about the clearing of the firearm while others were not sure what was said. The evidence of Mr Martin was that Lugg kept saying “what did you mean?. ..what did you mean?”. Mr Lugg followed Mr Martin to his car and did very little else. Mr Lugg says that he wished Mr Martin to stop as he wanted to check his rifle. Mr Lugg in his statement says that he cannot recall what he said to Mr Martin. He does say that he raised his arm to Mr Martin and in response Mr Martin told him to “piss off.” I submit that at no time did Mr Lugg make it clear to Mr Martin that he wished to inspect his rifle. It is his own evidence that he cannot recall what he said. Mr Martin placed his rifle in the rear of his utility and then returned to the firing line to pick up the remainder of his belongings. Mr Lugg agrees that was the case. Mr Martin says in his evidence that Lugg says to him that Martin had threatened Johnstone. Mr Martin says to Lugg did you hear me threaten him? There is no evidence from Lugg about this conversation. Mr Martin's evidence is that Lugg then walked back to the firing line as did Mr Martin. There was a statement from one witness, Mr Byrne that there were safety protocols involved in the club, but there was no evidence at all from any witness that any club member had ever sought or received any information about club safety protocols. Mr Byrne suggested it was in the club constitution. He went on to say that everyone understood the rules. But he could give no evidence to support that contention. It is the fact that safety precautions were at best ad hoc and if applied were loosely applied and liberally interpreted. Mr Martin is deaf, he does not wear hearing protection and talks very loudly in normal conversation.

p. Mr Martin collects the remainder of his equipment. There is an exchange between Mr Martin and Mr Johnstone in which it is claimed by Mr Martin that he says to Mr Johnstone words to the effect of “You should make sure of your facts before you go making accusations”. The evidence of Allan Lugg is that he sees Mr Martin return to the firing line and collect the remainder of his gear. Lugg says that he sees Martin approach Johnstone. He cannot remember what is being said. He says he sees Martin pointing at Johnstone, he sees Johnstone get up. There is evidence that the exchange goes on. Mr Byrne, who up to this point had no involvement in any of the issues now interposes himself between the two men. Mr Martin says there is an exchange between Mr Martin and Mr Byrne in which he is pushed backwards by Mr Byrne. Allan Lugg says he sees the exchanges between Johnstone and Martin and between Byrne and Martin. There is nothing in Lugg’s statement that refers to any chest poking or pushing or other physical interaction between the parties. Lugg does not give any evidence that he sees Martin pushing Johnstone nor does he see Martin pushing Byrne. He says that he hears Byrne say to Martin “Back off” and he says that hears that three times before Mr Martin and his son leaves.

q. At this time Mr Martin's son arrives and takes his father to their vehicle and they leave the property. A witness says several people pull Mr Martin away. This is simply untrue, again that evidence is from one of the Tyrrells.

63 Mr Carey has provided written submissions in regard to the evidence presented in support of the Commissioner’s case. Mr Carey submitted:

Russell Byrne.

James Booth.
The evidence of Mr Booth is was not believable. The statement was six months after the event and he was not available far cross examination. He says that he saw things that no other witness saw or reported. He says he hears Martin say to Johnstone that “I will bash you”. No one else reports [those] words. He does say the Manfred Pilz and that Pilz (sic) was a witness to the first incident. As to the substance of the statement there are no notes on why he did not give a statement earlier and there is doubt about the voracity of a statement made six months after the event. There must be real doubt about the accuracy of that evidence.

Stephen Tanner.

Jeffrey Rose.
Has two versions of what he heard. Again not able to be tested in evidence. He does say one thing of interest, there was an informal conversation between the members of the committee. He says that they discussed the matter and heard the comment made “we need to get rid of him”. certainly evidence that the committee had made a decision, even if informal, that they had to get rid of Mr Martin, and of very little use in the matter. Again this was in an affidavit made by Mr Rose on the 13^th May, 6 months after the Christmas function and untested in court.

Allan Lugg.

Rebecca Byrne.
The daughter of Russel Byrne, Her evidence is that Mr Martin's rifle was pointed down range. She says she was cleaning her firearm. She is an adult and not a “child” as she is referred to by Mr Byrne. Ms Byrne does not refer to any words other than those of Mr Martin. She does not refer to anything said by her father, Mr Lugg, Mr Tyrrell or Mr Johnstone. The words that she says she heard are coincidently the same as the words that her father uses. Again not available for cross examination and the statement was made more than 6 months after the event.

Trevor Johnstone
Says the initial exchange was between himself and Mr Martin. Does not mention that the exchange was between Mr Martin and the Tyrrells. Says that Mr Martin threatened to “turn my firearm of you.” (sic) Very similar to the words “Take the gun from him”. Interesting that he uses the term “firearm”, not gun or weapon or rifle. I would submit that the conversation is not as reported by Johnstone. Mr Martin's evidence is that there were no comments directed at Johnstone at that time. There is no other evidence that (sic).

Johnstone also says that he was approached by Mr Martin who threatened to “.. punch him in the head ...” No one else heard those words even though there were others there. It was the evidence of Mr Martin that he said to Johnstone words to the effect of “be sure of your facts before you go making accusations..” Meaning that Martin took Johnstone to task over the misreporting of words. That Johnstone was not truthful. Again Johnstone was not available for cross examination. The Court was informed that he was out of the country.

Perhaps most telling of the untruthfulness of the Johnstone statement was the untested allegation that Mr Martin had a loaded rifle in his hand when he had the exchange between himself and Martin. That is not the evidence of any other witness and I would submit was made to cast an unfavourable light on Mr Martin.

Johnstone's statement was made on the 7th February 2010.

64 In summary, Mr Carey argues that there is conflicting evidence about the issue concerning the Applicant’s handling of the firearm during the 12 December incident and says that there must be doubt that any rule was broken or protocol not observed.

65 He submits that the evidence of Luke Tyrrell is entirely unreliable and must be disregarded entirely. He further submits that if the evidence of Mr Byrne is accepted, then the evidence of his daughter, Mr Lugg, Mr Hopcroft and many others would have to be disregarded. He says that the evidence of Mr Lugg supports much of what the Applicant says and in a lot of ways is at odds with the evidence of Mr Byrne and Mr Johnstone Johnstone. He further submits that some crucial evidence has been left untested because witnesses were unavailable for cross examination.

66 He submits that the suggestion that the Applicant would threaten to shoot somebody is bizarre. He says that there is no evidence that this is the type of language that the Applicant uses as a matter of course. Such a threat is out of character for Mr Martin. The Applicant is trained as a range safety officer and has a number of personal credentials such as being the retired Sheriff of Nowra, a Justice of the Peace, and a certified range safety officer. He is known to be loud. He is deaf.

67 Mr Carey submitted that the Tribunal should determine that the Applicant is a fit and proper person to hold a firearms licence.

Discussion

68 The Tribunal’s role is to decide what the correct and preferable decision is having regard to the material then before it. The Commissioner contends that it is not in the public interest for the Applicant to hold a licence. It is necessary to consider that issue.

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

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

70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the ‘public interest’ “is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”.

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy president Hennessy stated at paragraph [25]

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

73 A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25].

74 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”.

75 In this matter, the conduct in question was that involved in the 12 December incident. I have reviewed the evidence relating to that incident. There is a stark difference between evidence the parties.

76 The inference to be drawn from the Applicant’s evidence is that a decision had been taken within the SHC to get rid of him, and that the evidence was concocted to achieve that objective. I do not accept that to be a plausible explanation. Nor do I accept that the evidence presented on behalf of the Applicant is an accurate account of the incident.

77 Contrary to the argument presented on behalf of the Applicant, it is my view that the evidence of the Commissioner is reasonably consistent. While I accept that there is discrepancies between the witnesses’ recollections, the consistent thread is that the Applicant’s conduct was threatening. It is not reasonable to expect that all of the witnesses to the 12 December incident would have identical recollections of what took place.

78 I accept that the Applicant has a number of personal credentials such as being the retired Sheriff of Nowra, a Justice of the Peace, and a certified range safety officer. There is no history of the Applicant’s misuse of firearms. I also accept that the Applicant’s tendency to raise his voice is related to his poor hearing.

79 However, a further thread to the Commissioner’s evidence is that the Applicant has a history of abusive and aggressive and inappropriate behaviour. The evidence suggests that he is prone to unreasonable outbursts that other members of the SHC have found threatening.

80 On the evidence before me I accept that it is probable that the Applicant threatened to use a firearm against another member of the SHC during the 12 December incident. The threat was most likely made towards Trevor Johnstone, however it is possible that the threat was directed at either Peter Tyrrell or Luke Tyrrell.

81 There is some doubt with respect to whether or not the Applicant was in possession of a loaded rifle at the time of the threat. However, in my view that is of no consequence as he was clearly in possession of a rifle and ammunition. It is also of no consequence that the Applicant may have had no intention of carrying out the threat.

82 I am not satisfied that the Applicant merely said “they should take all guns off idiots and imbeciles like you”. I am satisfied that there was a threat to use a firearm. I accept the evidence that he used words similar to “You shut your mouth or I'll take the gun to you.”

83 I am also satisfied that the Applicant was responsible for the subsequent altercation with Mr Johnstone and Mr Byrne.

84 I am not satisfied that the evidence shows that the Applicant had failed to clear his firearm and render it safe before leaving the firing line. However, on the evidence before me I am satisfied that the Applicant refused to allow Mr Lugg to inspect his firearm before allowing him to leave the firing line. He abused Mr Lugg as he did so, and physically assaulted him by pushing him out of the way. At the time, Mr Lugg was attempting to perform his role as safety officer.

85 I am satisfied that the Applicant acted unreasonably in reacting to the actions of others on the firing line who were targeting fruit and bottles. He acted unreasonably in his response to the attempt by Mr Lugg to inspect his firearm before allowing him to leave the firing line. He subsequently acted unreasonably in an altercation with Mr Johnstone and Mr Byrne.

86 The evidence suggests that the Applicant has great difficulty in controlling his anger. In light of his behaviour during the 12 December incident I am not satisfied that the Applicant poses virtually no risk to public safety. In my view, given the evidence before the Tribunal, the correct and preferable decision is to revoke his firearms licence. It is my view that there is always the possibility of a future dispute or confrontation between the Applicant and others members of the SHC if he were to retain his licence in the present circumstances. That poses a further risk to public safety. I agree with the Respondent that at this time it is not in the public interest for the Applicant to continue to hold a licence.

87 However, I note that if the Applicant is able to satisfy the Commissioner that he can control his anger without resorting to threats of violence (for example through attendance at an anger management course and a period of good behaviour), the Commissioner may be satisfied that he can again be afforded the privilege of firearms possession and use without risk to public safety.

The decision under review is affirmed.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR

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Citations

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

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CITATION:	Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276
DIVISION:	General Division
PARTIES:	APPLICANT Gordon George Martin RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	103071
HEARING DATES:	25 June 2010
SUBMISSIONS CLOSED:	9 July 2010
DATE OF DECISION:	18 November 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms licence - revocation of licence or permit – public interest
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
CASES CITED:	Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75
REPRESENTATION:	APPLICANT P Carey, solicitor RESPONDENT J Tillott, solicitor
ORDERS:	The decision under review is affirmed.