Meacham v Commissioner of Police, NSW Police Force (No 2)

[2021] NSWCATAD 49

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Meacham v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAD 49

Hearing dates:

21 September 2020
1 October 2020 (Final submissions)

Date of orders:

5 March 2021

Decision date:

05 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Principal Member

Decision:

The decision made by the Commissioner of Police, NSW Police Force to refuse to grant Ms Eleonora Meacham’s application for a “category ABH firearms licence, is affirmed.

Catchwords:

Administrative Law – firearms – revocation of licence -- public interest – fit and proper person.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16

Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154

McDonald v Guardianship and Administration Board [1993] 1 VR 521

Meacham v Commissioner of Police [2020] NSWCATAP 107

Meacham v Commissioner of Police, NSW Police Force [2019] NSWCATAD 196

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

Category:

Principal judgment

Parties:

Eleonora Meacham (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
C Moschoudis (Applicant)

Solicitors:
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/00054095

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. In September 2019, a differently constituted Tribunal affirmed the decision made by the Commissioner of Police, NSW Police Force (the Commissioner) to refuse to grant Ms Eleonora Meacham’s application for a “category ABH firearms licence”: Meacham v Commissioner of Police, NSW Police Force [2019] NSWCATAD 196. An Appeal Panel of NCAT allowed an appeal brought by Ms Meacham and set aside that decision: Meacham v Commissioner of Police [2020] NSWCATAP 107.

2. The Commissioner’s decision has now been remitted to me for reconsideration. In undertaking that task, I am required to make the correct and preferable decision having regard to the material before me, any relevant factual material and any applicable written or unwritten law: s 63 of the Administrative Decisions Review Act 1997 (NSW).

3. Ms Meacham urges the Tribunal to set aside the Commissioner’s decision and to grant her application for an ABH firearms licence. The Commissioner urges the Tribunal to affirm his decision.

4. For the reasons that follow, I have decided to affirm the Commissioner’s decision.

Statutory framework

5. The Firearms Act 1996 (NSW) (the Act) establishes licencing (Part 2, Division 2) and permit (Part 2, Division 3) schemes and makes the possession or use of firearms without a licence or permit an offence: ss 7 and 7A.

6. The underlying principles of the Act include (s 3(1)):

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

(b) to improve public safety:

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

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

7. The Commissioner must not issue a licence to an applicant for a firearms licence unless he or she 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”: s 11(3). In addition, the Commissioner may refuse to issue a licence if he or she “considers that issue of the licence would be contrary to the public interest”: s 11(7).

8. In Meacham v Commissioner of Police [2020] NSWCATAP 107, the Appeal Panel cited with approval Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 in which an Appeal Panel of one of NCAT’s predecessors, the NSW Administrative Decisions Tribunal, said in relation to the term “public interest” at [33]:

The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

Administrative review

9. A person aggrieved by a decision made by the Commissioner to refuse to issue a licence may apply to the Tribunal for administrative review of that decision: s 55 of the Administrative Decisions Review Act.

10. In determining an application for administrative review, the Tribunal may affirm or vary the decision the subject of that application, set aside that decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator: s 63(3) of the Administrative Decisions Review Act.

11. The nature of a review under s 63 of the Administrative Decisions Review Act was recently considered in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 (Youssef). Citing Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154, the Tribunal (NCAT President, Armstrong J presiding) emphasised at [21] that a review under s 63 is a “review on the merits” and is “not concerned ... whether there was challengeable error in the process or reasoning” by the original decision maker. Rather, the role of the Tribunal is to “decide what the correct and preferable decision is having regard to the material before it”, which includes “any relevant factual material”: at [23].

12. In summary, in reviewing the decision to refuse to grant Ms Meacham’s application for a firearms licence, I “stand in the shoes” of the Commissioner and am required to make the “correct and preferable decision” having regard to any “relevant factual material and any applicable written or unwritten law”. The review is to be conducted “without any presumption as to the correctness of the decision”: McDonald v Guardianship and Administration Board [1993] 1 VR 521 at 530; Youssef at [24].

Background to the Commissioner’s decision in respect of Ms Meacham’s application for a category ABH firearms licence

13. Between 1995 and 2017, Ms Meacham held several firearms licences including, since 1999, a category ABH firearms licence. That licence permitted Ms Meacham to use various types of firearms for the “genuine reason” of “clay target shooting” and “recreational hunting/vermin control”.

14. Between 2003 and 2015, Ms Meacham’s husband, Mr Graeme Barry, was the sole director and secretary of BMC Global Pty Ltd, the operator of the Condell Park Indoor Firearms Range (the Range). In addition, BMC Global operated a firearms dealership (the Dealership) which was located on the Range. Mr Barry held a “firearms dealer licence” under the Act which permitted him to purchase and sell firearms. Ms Meacham held a “Dealers Director’s Authority” with the Range, from 2003 until it was cancelled in February 2016.

15. In renewing his firearms dealer licence in 2008 and 2013, Mr Barry nominated Ms Meacham as a “close associate”: see definition in s 4B of the Act.

16. Ms Meacham is neither a director nor shareholder of BMC Global. Between 2009 and 2015, she was an employee of BMC Global. An issue in dispute between the parties, to which I will return, is the role played by Ms Meacham in the management of the Range, in particular her role in managing the firearms registered to the Dealership.

17. In deciding to refuse Ms Meacham’s application for an ABH firearms licence, the Commissioner considered to be significant two separate incidents which had occurred at the Range in 2013 and 2015.

The 2013 incident

18. In 2013, a person with terminal cancer committed suicide at the Range while being instructed in the use of firearms. At the time the deceased and two other unlicensed shooters were being supervised on the “range line” by Ms Meacham’s son-in-law, Mr Tony Yammine, a licensed firearms instructor. The suicide was planned. On the day of the suicide, Ms Meacham was on the “front desk” and had met with and signed in the three shooters. Mr Barry was not at the Range and Ms Meacham was the “delegated range official”.

19. Section 6B of the Act permits a person who does not hold a firearms licence or permit to use a firearm at a shooting range approved by the Commissioner while under the “direct supervision” of an approved firearms instructor, that is, one-on-one supervision. The Range approval held by Mr Barry was subject to the standard condition requiring unlicensed shooters to be subject to “direct supervision”.

20. Ms Meacham was charged with the offence of “operat[ing] approved shooting range in contravention of any condition to which the approval is subject. After Ms Meacham entered a guilty plea, the Local Court dismissed the charge without proceeding to conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

21. Following this incident, several deterrent measures were introduced at the Range, including tethering and locking firearms.

22. Because of the 2013 incident, in April 2014, the Commissioner revoked Ms Meacham’s ABH firearms licence on “public interest grounds”. Six months later, following internal review, the Commissioner reinstated Ms Meacham’s licence.

The 2015 incident

23. On 17 September 2015, staff of the Range were unable to locate a firearm which had been requested by its owner, a police officer. Staff undertook a further search of the firearms stored at the Range and found four could not be located. At that time, approximately 1400 firearms were stored at the Range, consisting of “dealership stock” (firearms owned by the Dealership) and “storage stock” (privately owned firearms stored at the Range for a fee).

24. On 21 September 2015, Mr Barry informed Police that four firearms stored at the Range could not be located. On 25 September 2015, following a further search, Mr Barry informed Police that one of the four firearms thought to be missing had been located.

25. On 27 October 2015, Police arrived at the Range unannounced, executed a search warrant, and commenced an audit of the firearms held at the Range. At their request Ms Meacham handed Police a document listing 12 firearms she had identified as missing in the course of a “self-audit”. According to Ms Meacham, that audit commenced in late September 2015 and was still underway when Police arrived on 27 October 2015.

26. At the end of their investigation, Police concluded that 21 firearms could not be located and charged Mr Barry with 21 counts of the offence “not prevent[ing] theft/loss of firearms – not prohibited firearms/pistol” under s 39(1)(b) of the Act. Subsequently, 10 of the 21 firearms were located, and Police withdrew the corresponding charges. Mr Barry entered a guilty plea in relation to the remaining charges. The Local Court dismissed those charges under s 10 of the Crimes (Sentencing Procedure) Act on condition that Mr Barry enter into a good behaviour bond for a period of two years.

27. Ms Meacham was not charged with any offences in relation to the missing firearms.

28. Section 39 of the Act provides:

39   General requirement

(1) A person who possesses a firearm must take all reasonable    precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or    both, if it is established beyond reasonable doubt that the firearm    concerned was a prohibited firearm or a pistol, or 20 penalty units or    imprisonment for 12 months, or both, in any other case.

…

29. In October 2015, the Commissioner suspended Ms Meacham’s ABH firearms licence.

30. On 2 November 2015, Ms Meacham informed Police that she had located a firearm which was in several pieces, in the corner of the cage where the firearms were stored.

31. In March 2017, the Commissioner revoked Ms Meacham’s licence on public interest grounds.

32. In March 2018, Ms Meacham made a fresh application for an ABH firearms licence. The Commissioner refused to grant that application, again citing public interest grounds. Ms Meacham applied to NCAT for review of that decision. As noted above, the decision of the Tribunal to affirm the Commissioner’s decision was set aside on appeal.

Pre-holiday firearms audit

33. An issue in dispute between the parties is whether, as claimed by Ms Meacham, she conducted an audit of firearms stored at the Range before leaving for the USA with her husband in August 2015 (the pre-holiday audit). Ms Meacham claimed that the audit was undertaken about four to five weeks before she and her husband travelled to the USA.

34. In a statement dated 7 May 2019, Ms Meacham stated that before travelling to the USA, “alongside other employees [she] undertook a storage audit” and found “all firearms were accounted for”. Ms Meacham described that claimed audit as a “self-audit”, a “peace of mind” audit. She claimed that employees of the Range conducted self-audits every three to six months. She said that those audits involved checking each firearm stored at the Range against the firearms listed in the “PAB 28 book”, also known as the “Dealer’s Book” or the “Register of Acquisitions and Disposal of Firearms”. As a licensed firearms dealer, Mr Barry was required to maintain a record, in a form approved by the Commissioner, listing all firearms acquired and disposed of by the Dealership and various details about them: s 45 of the Act.

35. According to Ms Meacham, self-audits were generally undertaken by two to three employees. She claimed that in conducting those audits it was her practice to enter a tick in the Dealer’s Book against each located firearm. She claimed that at the end of the audit she erased the ticks entered in the Dealer’s Book. In addition, she claimed that those entries were the only documentary record of the self-audit.

36. In the hearing before me (the remitted hearing), in oral evidence, Ms Meacham described the pre-holiday audit as a “partial audit” and claimed that it did not include the firearms registered to the eight pistol clubs based at the Range. In cross-examination, she agreed with the proposition that this was the first time she mentioned the pre-holiday audit as being a partial audit. In re-examination, when asked why, in her statement dated 7 May 2019, she had used the term “storage audit” to describe the pre-holiday audit, she stated that she intended to convey she had only checked the vault area, not the area where the firearms held by the pistol clubs were stored.

New evidence

37. In these proceedings, over Ms Meacham’s objection, I admitted new evidence adduced by the Commissioner.

38. That evidence reveals that one of the missing firearms located by Police after Mr Barry was charged with offences in relation to the missing firearms had been acquired from the Triple O Services Pistol Club in March 2015. The purchaser, a former member of the Club, had taken the firearm (the subject firearm) to store at his home. Until this sale was discovered by Police (sometime after October 2015), the subject firearm appeared in the Dealer’s Book as being in the possession of the Dealership and that book contained no record of the March 2015 sale.

39. The Commissioner contends that this evidence conflicts with Ms Meacham’s claim of having conducted a pre-holiday audit. He argues that if Ms Meacham had conducted that audit, she would have been alerted to the fact that, contrary to the entry in the Dealer’s Book, the subject firearm was no longer being stored by the Dealership.

40. In reply, Ms Meacham stated that it appears that the Triple O Services Pistol Club had failed to inform the Dealership, as required by the Act, of the March 2015 sale. In a statement prepared for these proceedings, the armourer of the Club (the Armourer) stated that, at the time of the sale, he was unwell and may have failed to inform the Dealership of the purchase and the consequent “change of storage requirements”.

41. In the remitted hearing, Ms Meacham stated that she did not identify the subject firearm as missing in the pre-holiday audit because she did not inspect the safe where the firearms of the Triple O Services Pistol Club were stored. She claimed that, except for the Harley Crescent Pistol Club, of which she was the secretary, she did not have access to the safes of the pistol clubs based at the Range.

42. In oral evidence, this claim was contradicted by the Armourer who explained that if a member wanted to collect their firearm stored by the Dealership, they would request the attending employee to retrieve their firearm from the Club safe, which was “behind the counter”. He stated that he was not able to go behind the counter where the Club’s firearms were stored and did not have a key.

Post-holiday audit

43. Ms Meacham stated that she commenced another self-audit on or about 17 September 2015, shortly after her return from the USA. She disagreed with the proposition that the reason that the audit had not been completed when Police arrived on 27 October 2015 was because she had not given it priority. She claimed that she had been working on the audit, assisted by other employees, five days a week for several hours each day. She claimed that she wanted to ensure that the audit was accurate and checked and rechecked the located firearms against the entries in the Dealer’s Book. In re-examination in the remitted hearing, Ms Meacham claimed that she had been asked by Mr Barry to undertake the audit.

44. When questioned why she did not inform Police of the 10 firearms she identified she found missing throughout the course of the post-holiday audit, Ms Meacham said she had informed Mr Barry, who had been liaising with Police. Within 24 hours after becoming aware of the loss or theft of any firearm in their possession, a licenced firearms dealer must, notify the Commissioner of that loss or theft: s 47(2).

Ms Meacham’s hypothesis about the missing firearms

45. According to Ms Meacham, while she and Mr Barry were in the USA the employee then in charge of the Dealership permitted an “unauthorised person” into the vault area where firearms were stored, where he remained unsupervised for 20 minutes. According to Ms Meacham, this incident was captured on CCTV footage and the unauthorised person could be seen “with his clothes looking bulkier”. She claimed that the footage was viewed by Police and, at some point, it was overwritten. She stated that she did not provide Police with that footage and that Mr Barry was responsible for all matters relating to the Range’s CCTV.

Consideration

46. There are several factual issues in dispute which are relevant to the question of whether the decision to refuse to grant Ms Meacham a firearms licence is the correct and preferable decision. They include whether Ms Meacham:

1. failed to acknowledge culpability for the 2013 incident;

2. was a mere employee of the Dealership as claimed;

3. undertook the pre-holiday audit;

4. gave priority to the post-holiday audit;

5. bore some responsibility for the missing firearms.

Acknowledgement of culpability for the 2013 incident

47. In support of the submission that Ms Meacham “clearly believes that she has no responsibility for the 2013 incident”, the Commissioner points to the following extract in Ms Meacham’s statement dated 23 July 2019:

“I was issued with a Commissioner’s authority on 2 September 2013. I was in charge of the range in the absence of Graeme Barry, my husband. It was upon that basis that I entered a plea of guilty at the first opportunity on the basis of vicarious liability.”

48. I do not agree that Ms Meacham’s use of the term “vicarious liability” indicates that she was seeking to deflect responsibility for her actions. In evidence given in the original proceedings, Ms Meacham acknowledged that she was responsible for managing the Range on the day of the incident. Her actions in entering a guilty plea at the earliest opportunity are consistent with an acknowledgement of culpability. Read in context, in my view, Ms Meacham’s use of the term “vicarious liability” indicates nothing more than that it was her understanding of the law that in Mr Barry’s absence as “delegated range official” she was responsible for any contravention of a condition to which the Range was subject.

Ms Meacham’s role in the management of the dealership

49. The Commissioner submits that throughout these proceedings Ms Meacham has consistently sought to downplay her role in respect of the management of the Range, in particular, the management of the firearms registered to the Dealership. The Commissioner contends that Ms Meacham’s attempt to characterise her role as one of a “mere employee” conflicts with the following evidence:

1. The statement Ms Meacham gave to Police following the 2013 incident, in which she described herself as “part-owner of the Condell Park Indoor Firearms range, alongside my partner Graeme Barry”.

2. Statements to the same effect which were given by Mr Yammine and the police officer who attended the suicide incident.

3. Mr Barry’s actions in nominating Ms Meacham as a “close associate” when renewing his dealer’s licence in 2008 and 2013.

4. The statement dated 4 June 2019 made by Senior Constable Wayne Jackson, who participated in the October 2015 Police investigation, in which he described Ms Meacham as the “person who was solely in charge of the range on the day of our visit/inspection”. According to Senior Constable Jackson, during that investigation Ms Meacham:

1. explained to Police in detail the internal practices and policies of the Range;

2. allowed and facilitated Police access to the range, including restricted areas of the Range;

3. in contrast to Mr Barry, was present throughout the entirety of the audit;

4. liaised with Police throughout the audit; and

5. answered detailed questions about the licensing of employees and the records for employees’ authorities and approvals.

50. In the original proceedings, when questioned about why she had described herself as “part-owner of the range” in the statement she gave to Police following the suicide incident, Ms Meacham replied that she was in shock when she made that statement and had not given proper consideration to the content of her statement. She agreed with the proposition that she was the “manager of the premises” but qualified this by saying “only while on duty”.

51. Ms Meacham claimed to have no financial interest in BMC Global and pointed out that she was neither a shareholder nor a director. She stated that, in her role as an employee of BMC Global at all times she followed her husband’s directions and made no decisions about the operation or management of BMC Global. Ms Meacham claimed that in 2015 most of her working time was devoted to undertaking administrative work for the Harley Crescent Pistol Club of which she had been the secretary for over a decade.

Close associate

52. The term “close associate” is defined by the Act to mean:

4B   Meaning of “close associate” of firearms dealer

(1) For the purposes of this Act, a person is a close associate of an    applicant for, or the holder of, a firearms dealer licence if the person:

(a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or licence holder, and by virtue of that interest or power is or will be able to exercise a significant influence over or with respect to the conduct of that business,    or

(b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of       the licence applicant or licence holder.

(2) In this section:

relevant financial interest, in relation to a business, means:

(a) any interest in the capital or assets of the business, or

(b) any entitlement to receive any income derived from the       business, whether the entitlement arises at law or in equity or       otherwise.

relevant position, in relation to a business, means a position whose    holder participates in the management of the business (whether in the    capacity of a director, manager or secretary or in any other capacity).

relevant power means any power, whether exercisable by voting or    otherwise and whether exercisable alone or in association with others:

(a) to participate in any managerial or executive decision, or

(b) to elect or appoint any person to any relevant position.

53. The only evidence about the basis for Mr Barry’s decision to nominate Ms Meacham as a “close associate” is the pro-forma declaration he submitted to the Commissioner in 2013 with his application to renew his firearms dealer licence. The form required that he tick one of three boxes to “describe the nature of [his] association” with Ms Meacham: “relevant financial interest”, “relevant position” or “relevant power”. Mr Barry ticked “relevant position”. Under that entry he wrote “wife”.

Conclusion

54. The paucity of evidence makes it difficult to resolve the factual controversy surrounding the exact nature of Ms Meacham’s role in BMC Global, in particular with respect to the management of the Dealership. There is no independent evidence, nor is there any evidence provided by Mr Barry about Ms Meacham’s role.

55. Ms Meacham’s claim that she played no role in the management of the Dealership or the Range apart from managing those businesses while “on duty” cannot be accepted for the following reasons.

56. First, it is inconsistent with the declaration made by Mr Barry in 2013. It will be recalled that he nominated Ms Meacham as a “close associate” on the basis that she held a "relevant position". As set out above, "relevant position", is defined to mean “a position whose holder participates in the management of the business (whether in the capacity of a director, manager or secretary or in any other capacity)”. It is possible, as Ms Meacham appears to suggest, that Mr Barry may have harboured the mistaken belief that she was a close associate by virtue of their marital relationship. However, in the absence of evidence from Mr Barry, the best evidence of the reason he nominated Ms Meacham as a close associate is his declaration that Ms Meacham held a “relevant position”. Notably, from 2013 until his dealer’s license was revoked, Ms Meacham was the only person nominated by Mr Barry as a close associate. He first nominated Ms Meacham as a close associate in 2008.

57. Second, on its own the fact that Ms Meacham cooperated throughout the October 2015 Police investigation and was able to respond to Police’s detailed questions about the operation of the Dealership and its employees is unremarkable given that she had been working for the Dealership for six years and held a dealer’s director authority since 2003. However, coupled with the evidence that it was Ms Meacham, not Mr Barry nor some other employee, who was present throughout the course of the investigation, this tends to suggest that her role in the Dealership was something more than a trusted employee. It is to be recalled that the October 2015 Police investigation was of some significance and had the potential to, and in fact did, result in Mr Barry being charged with offences under the Act, losing the Dealership, and Mr Barry and Ms Meacham losing their respective authorities and licences issued under the Act.

58. Third, Ms Meacham’s own evidence about the steps she took in relation to the auditing of the Dealership’s firearms tends to support a finding that she was significantly involved in the management of the business. The effect of that evidence is that she initiated and was responsible for the regular self-audits, including the pre-holiday audit. With the assistance of other employees, Ms Meacham took charge of the post-holiday self-audit. The first time Ms Meacham made the unsupported claim of being asked by Mr Barry to undertake that audit was in re-examination in the remitted hearing.

59. Fourth, even if it is accepted that Ms Meacham was in shock when she described herself as co-owner in the statement given to Police, that does not explain why her son-in-law and the attending police officer used the same description. Nor does it explain why the Facts Sheet in relation to the 2013 offence tendered in the Bankstown Local Court described Ms Meacham and her husband as the “owners of Firearms Range business” and that Mr Barry “operates that business with Ms Meacham”.

60. It is not to Ms Meacham’s credit that in these proceedings she sought to downplay her role in the management of the Dealership and the Range. The available material falls short, as the Commissioner appears to suggest, of establishing that Ms Meacham had primary responsibility for the operation and management of the Dealership. Indeed such finding would be at odds with the scheme of the Act which places primary responsibility for the management of the dealership on the holder of the dealer’s license: s 17B and Part 5 of the Act. Nonetheless, I am satisfied that in 2015 in a practical sense, Ms Meacham had significant responsibility for the operation and management of the dealership.

Pre-holiday audit

61. The first mention of the pre-holiday audit being a partial audit was made by Ms Meacham in her undated statement filed 30 August 2020, in reply to the Commissioner’s new evidence. In cross-examination in the original proceedings, when asked to describe the self-audit, Ms Meacham explained that it involved:

“Checking the firearms, making sure that all the firearms that were listed in PAB28, that is the book where the guns were listed, were in their rightful places.” (Emphasis added.)

(Transcript, Meacham v Commissioner of Police, NSW Police Force, NCAT, 2019/00054095, Senior Member Scahill, 3 November 2019, Disc 1, p 28)

62. Later, in response to a question about the area where the firearms were stored, Ms Meacham said:

“There's the vault, there's one, two, three. There was three safes, large safes, the vault, the four safes, sorry, and two enclosed areas where the rifles were stored. So I cannot accurately tell you how many safes and areas there are now, it is three years now. I know those three large safes, there was much smaller safes. There's 11 clubs at the range, I had to check and make sure that everybody checked correctly in every safe.” (Emphasis added.) (Transcript, Meacham v Commissioner of Police, NSW Police Force, NCAT, 2019/00054095, Senior Member Scahill, 3 November 2019, Disc 3 p 28)

63. The claim made by Ms Meacham in the remitted hearing that she did not have access to the keys of the Club’s safes is inherently implausible, unsupported and inconsistent with the evidence she gave in the original proceedings and the evidence given by the Armourer in the remitted hearing. The Armourer testified that neither he and other Club members required access to their firearm, the practice was to asked the dealer or the employee on duty to collect it. The Armourer had no apparent reason to give evidence unfavourable to Ms Meacham. Notably, at her request, he had prepared a statement in which he acknowledged that he had failed to advise the Dealership of the March 2015 sale of the subject firearm.

64. The evidence given by Ms Meacham about the scope of the pre-holiday audit and her role in the management of the Dealership raises questions about the reliability of other aspects of her evidence, including her unsupported claim of having undertaken that audit. On the available material I could not be satisfied that the audit was undertaken.

65. But even if it was undertaken, it does not assist in determining when the firearms became lost or stolen or whether, as Ms Meacham suggests, the “unauthorised person” was responsible for the loss. This is because:

1. On the available evidence it is not possible to draw any conclusions about the reliability of the claimed pre-holiday audit. Ms Meacham failed to provide any information about the time and resources devoted to it and the steps, if any, taken to verify its results. On her account, the task of auditing the firearms held by the Range was both difficult and time consuming, in part because sometimes employees failed to return firearms to their correct place. It will be recalled that, according to Ms Meacham, the post-holiday audit was undertaken over several weeks for several hours per day and nonetheless was still not complete when Police arrived at the Range on 27 October 2015.

2. Even if it is accepted that the pre-holiday audit was reliable, it does not establish that the firearms were lost or stolen while Ms Meacham was overseas. While this is a possibility, it is also possible that they became lost or stolen in the intervening period between the pre-holiday audit and Ms Meacham leaving for the USA. Equally, it is possible that they became lost or stolen in the period between Ms Meacham’s return and the commencement of the October 2015 Police investigation.

3. In the absence of any supporting evidence, Ms Meacham’s hypothesis about the likely culprit being the “unauthorised person” is nothing more than conjecture.

Post-holiday audit

66. I reject the Commissioner’s submission that the evidence supports a finding that Ms Meacham took a lackadaisical approach in undertaking the post-holiday audit. While her claim of having diligently applied herself to that audit is unsupported, so too is the Commissioner’s assertion that it is fanciful that an audit of that type would have taken several weeks to complete.

67. The Police investigation revealed that auditing the firearms held by the Dealership was a difficult task. While their investigation was presumably more extensive and complex than the post-holiday audit, nonetheless it involved many police officers working over several days. Notably, after it was completed, firearms originally thought to be missing were progressively located by Police.

68. Furthermore, it is difficult to see what motive Ms Meacham might have had for taking a half-hearted approach to the post-holiday audit. It can be assumed given her long experience with firearms that she understood that it was a most serious matter if firearms registered to a dealership could not be located and may result, as occurred here, in criminal charges being laid.

Ms Meacham’s responsibility for the missing firearms

69. In reasons given for deciding to affirm the original decision to revoke Ms Meacham’s ABH firearms licence, the Commissioner’s delegate wrote:

“I believe that you had the knowledge and ability to ensure you executed the responsibilities [conferred by the dealer’s licence] as required. You either chose not to do so or became so complacent in this regard which resulted in a large number of firearms being lost and which remain at large. Your submissions do not go so far as to give the necessary assurances that your attitude towards and, ability to ensure the safekeeping and security of any firearm in your possession has improved.

… I believe the public would find your history indicates a lax attitude towards the safety and security of firearms.”

70. In these proceedings the Commissioner submitted that, on account of her management responsibilities with the Dealership, Ms Meacham bore some responsibility for the loss of the firearms. However, the Commissioner agrees, as asserted by Ms Meacham, that despite an extensive investigation, Police were unable to identify who was directly responsible for the loss or theft of the firearms and when they went missing. In 2015, Ms Meacham was but one of about 20 people who had access to the firearms registered to the Dealership.

71. By entering a guilty plea in relation to offences under s 39(1)(b) of the Act, Mr Barry admitted failing to “take all reasonable precautions to ensure [the firearms were] not stolen or lost”.

The correct and preferable decision

72. As explained by the Appeal Panel at [24], the exercise of the discretion conferred by s 11(7) of the Act involves the making of an evaluative judgement “taking into account undefined factual matters (which nevertheless must be relevant to the exercise of discretion) confined only by subject matter, scope and purpose of the statute”.

73. In exercising the discretion to refuse Ms Meacham’s application for an ABH firearms licence, the Commissioner reasoned that her “lax attitude” towards the safety and security of the Dealership’s firearms may “transfer across” to the discharge of her responsibilities as an individual licence holder and, as a consequence, it was contrary to the public interest to grant Ms Meacham a category ABH firearms licence.

74. For the reasons given above, while it is a possibility, I am not satisfied on the available material that Ms Meacham was personally or directly responsible for the loss or theft of the missing firearms from the Dealership. But as found she was to some significant extent involved in the day-to-day management of the Range, as a “close associate” of Mr Barry. A considerable number of firearms were lost or stolen on their watch. Mr Barry admitted to failing to take reasonable precautions in relation to the missing firearms. The irresistible inference is that their management practices in relation to firearm security were deficient. For this and the following reasons I have concluded that it would be contrary to the public interest to grant Ms Meacham’s application for a category ABH firearms licence.

75. In these proceedings I found Ms Meacham to be an unreliable witness. It was not to her credit that she sought to downplay her role in the management of the Range and the Dealership and to attempt to explain away her failure to identify the subject firearm in the claimed pre-holiday audit by claiming that it was only a partial audit. In my view, it would be contrary to the public interest to confer the privilege of a firearms licence to an applicant who has given untruthful evidence in proceedings before the Tribunal. The integrity of the system of licensing firearms established by the Act is dependent upon licence applicants and licence holders being scrupulously honest and candid with the licencing decision-maker, be it the Commissioner, or, the Tribunal on review.

76. In reaching this conclusion, I have taken into account, as noted by the Appeal Panel at [63] the significant evidence that Ms Meacham had been a conscientious firearms owner, and had a good record of compliance in relation to her personal licences. That evidence includes:

1. the evidence given by people of apparent good character attesting to Ms Meacham’s good repute, integrity and fitness to hold a firearms licence;

2. the assessment of police officers involved in that, in their dealings with Ms Meacham throughout the October 2015 investigation, she was frank, helpful and civil;

3. the absence of any evidence to suggest that, over her long history of holding several firearms licences, Ms Meacham has failed to comply with her obligations as a license or not been fully frank in her dealings with Police.

77. Nonetheless, Ms Meacham’s unreliable evidence casts doubt over her fitness and appropriateness to hold a firearms licence. But the evidence of her close association in the management of a dealership in which the dealer was found to have failed to take all reasonable precautions to ensure firearms were not lost or stolen, her doubtful evidence about the auditing of firearms and the obvious potential danger to the public when firearms are lost or stolen taken together leads me to conclude that the issue of that licence would be contrary to the public interest. In reaching that conclusion I am mindful that the nature of the subject licence is relevant to the assessment of whether the issue of a licence would be contrary to the public interest. I have taken into account that an ABH licence is in the nature of a personal firearms licence and would not authorise Ms Meacham to operate a firearms dealership. Nonetheless, on the material before I cannot be positively satisfied that Ms Meacham can be trusted with all aspects of the safe possession of firearms and to deal with the licensing decision-maker with complete candour. For these reasons I have decided to exercise the discretion under s 11(7) of the Act and to refuse to issue Ms Meacham an ABH licence. I conclude that the correct and preferable decision is to affirm the Commissioner’s decision.

Orders

1. The decision made by the Commissioner of Police, NSW Police Force to refuse to grant Ms Eleonora Meacham’s application for a category ABH firearms licence, is affirmed.

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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: 05 March 2021