Paul v Commissioner of Police, NSW Police - [2006] NSWADT 70

No judgment structure available for this case.

CITATION: Paul v Commissioner of Police, NSW Police [2006] NSWADT 70

DIVISION: General Division

PARTIES: APPLICANT
Alan Rodney Paul
RESPONDENT
Commissioner of Police, New South Wales Police

FILE NUMBER: 053352

HEARING DATES: 16/12/2005

SUBMISSIONS CLOSED: 12/16/2005

DATE OF DECISION:
03/09/2006

BEFORE: Molony P - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms (General) Regulation 1997
Firearms Act 1996

CASES CITED: Coates v Commissioner of Police, New South Wales Police Service [2001] NSWADT 56
Cook -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 30
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

REPRESENTATION:
APPLICANT
T Morgan, Solicitor
RESPONDENT
W Pisani, Agent

ORDERS: 1.The decision to revoke Mr Paul’s category AB firearms licence is set aside; 2.The decision to revoke Mr Paul’s tranquilizer firearm permit is set aside

Background

1 Mr Paul has held various shooters’ licences since November 1988. Most recently he held both a Category AB firearms licence under Firearm Act 1996 for the genuine reason of primary production, and a permit under that Act to use a tranquilizer gun. The Category AB firearms licence was issued on 28 January 2004 for four years; while the permit was issued on 27 October 2000 and was due to expire on 14 December 2005.

2 Both were revoked by the Commissioner on 17 May 2005. Mr Paul sought an internal review of the revocation decisions, which review, dated 15 September 2005, affirmed the decisions to revoke. In considering the internal review the review officer found that:

Mr Paul’s delay in having that weapon registered showed the low importance he placed on possessing an unregistered firearm;

Mr Paul subsequently sought to register two unregistered firearms, and dishonestly and falsely represented to the Firearms Registry that two unregistered firearms had been found during the audit;

Mr Paul had failed to take all reasonable steps to ensure the safekeeping of a .58 Euroarms rifle, which had been removed (together with the container in which it was stored) from his property called “Borah View”, and the whereabouts of which are not known, but which may be in the hands of a criminal element;

Mr Paul no longer had a genuine reason for holding his category AB licence as there was insufficient evidence that he remained a primary producer;

allegations made by Mr Paul’s ex-wife as to his mental stability, and alleged threats of self-harm, were a “cause for concern”, but that there was no evidence to conclude that Mr Paul’s “mental condition would pose a risk to public safety”;

Mr Paul’s conduct – as found by the internal review officer – was dishonest and irresponsible and that he had therefore forfeited the privilege of owning a firearms

Mr Paul’s conduct with respect to firearms was cause for concern that Mr Paul’s “continued possession and use of a firearm would pose a risk to pubic safety, without further investigation of these allegations regarding your mental condition”; and

Mr Paul’s disregard of the laws relating to firearms showed that his continued possession and use of a firearm may pose a risk to public safety.

3 Mr Paul lodged his appeal against the decision made on internal review with the Tribunal on 11 October 2005. He disputes every finding made on internal review.

4 The role of the Tribunal is to determine whether the Commissioner had made the “correct and preferable” decision when revoking Mr Paul’s category AB permit and tranquilizer firearm permit: s 63 of the Administrative Decisions Tribunal Act 1997.

The Legislation

5 Generally. When discussing the application of the Firearms Act 1996 it is important to bear in mind the principles and objects underlying the act set out in s.4, which provides:

(b) to improve public safety:

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

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

6 The Act establishes a register of firearms in which particulars of firearms and of the licence or permit holder to whom they are registered are to be kept: s.33. Licence and permit holders may apply to have firearms registered: s.34.

7 Section 36 deals with unregistered firearms:

Maximum penalty: imprisonment for 10 years if the firearm concerned is a prohibited firearm or pistol, or imprisonment for 5 years in any other case.

(2) It is a defence to a prosecution for an offence under this section to prove that the defendant:

(a) did not know, or could not reasonably be expected to have known, that the firearm concerned was unregistered, and

(b) was not the owner of the firearm at the time of the alleged offence.

(b) must, if the firearm is sold or lost by, or stolen from, that person, immediately notify a police officer of the sale, loss or theft of the firearm and provide the Commissioner, within 7 days after the firearm is sold, lost or stolen, with particulars of the sale, loss or theft in accordance with the regulations.

8 General safekeeping requirements for firearms are dealt with by s.39:

(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.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

9 Licences. The licensing scheme in the Act requires a person to demonstrate a "genuine reason" for owning, using or possessing a firearm: s 12. Among the genuine reasons specified in the Table to s 12 is :

“Reason: primary production

The applicant must:

(a) be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and

(b) state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).”

“… in addition to establishing a genuine reason for being issued with the licence, produces evidence to the satisfaction of the Commissioner that there is a special need for the person to possess or use a firearm to which licence category B applies.”

10 Section 24 provides for the revocation of licences:

“(2) A licence may be revoked:

(a) …

(b) if the licensee:

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.”

Firearms (General) Regulation

“In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.”

11 Clause 13 of the Firearms (General) Regulation 1997 requires a licence holder to notify of a change of address within 7 days.

12 Specific safekeeping requirements with respect to category A and B licences are dealt with by s.40:

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

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

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

(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this section.

13 Tranquilizer Firearms Permit. Section 28(c) empowers the Commissioner to issue firearms permits “to authorise the possession or use of firearms in such circumstances as may be prescribed by the regulations.” The Commissioner must be “satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”, and satisfied the other requirements set out in s.29.

14 Clause 49 of the Firearms (General) Regulation 1997 deals with the issue of permits from tranquilizer firearms:

(2) The Commissioner must not issue a permit under this clause unless the Commissioner is satisfied that the possession or use of the tranquilliser firearm to which the permit relates is a necessary part of the occupation of the person or persons who will be authorised to possess or use it.

(3) A permit under this clause authorises the holder of the permit (or such other person specified in the permit) to possess and use the tranquilliser firearm only in the normal course of the person’s occupation.

(4) In this clause:

tranquilliser firearm

15 Section 30(4) provides:

(b) for such other reasons as may be prescribed by the regulations.

16 There is a great disparity between the view of the facts leading to the decision to revoke Mr Paul firearms licence and permit taken by the internal review officer, and that advanced by Mr Paul.

17 Mr Paul told the Tribunal that he is only semi-literate. While he can read to a limited degree, he is unable to write. He relies on others to write letters and other important correspondence for him.

18 Mr Paul told the Tribunal he has two properties: one at Gunnedah and one at Manilla, from which he has and continues to earn the majority of his income. His tax returns which he produced to the Tribunal support this. Mr Paul also owned a car wash in Gunnedah.

19 In April 2002, as a result of marital difficulties, Mr Paul separated from his wife with whom he lived at Gunnedah and moved to his property at Manilla. He said in evidence that he had always divided his time between the two properties. As a result of information received from Mr Paul’s wife, on 18 April 2002, to the affect that Mr Paul was threatening self-harm, Police attended the property at Manilla. According to the COPS record of that incident Mr Paul was found to be upset and was conveyed to Manilla Police Station to be assessed by Mental Health Authorities. The firearms he had at Manilla were secured and taken to the Police Station for safekeeping. Police records show what while at the Police Station Mr Paul spoke with Mental Health Authorities by phone. Mr Paul denies ever making threats of self harm and says that he has never spoken with Mental Health Authorities. He says that the allegation that he had threatened to harm himself was made by his wife out of spite. Police records indicate that Mr Paul’s “mood had eased considerably” and he was allowed home. His firearms were returned to him at a week later.

20 Mr Paul told the Tribunal that after this he spent some time at Manilla and then again commenced to divide his time between Manilla and Gunnedah. He moved most of his firearms back to Gunnedah, but left a Euroarms .58 cal muzzle loader, which was primarily a show piece, in the gun cabinet at Manilla. That cabinet was of an approved lockable type and was also padlocked. It was bolted to the wall of a shipping container which was used for storage at Manilla. Mr Paul estimated that the container measured 20’ x 8’ x 8’ and weighed 20 tons. It was fitted with a key operated, three pin, hidden, locking device. In addition to the gun cabinet the container contained items of furniture and other personal property. The only person with access to the container were Mr Paul and his wife.

21 Mr Paul said that in 2004 he ran into Constable Glenn Swift at his car wash in Gunnedah. He arranged for Constable Swift to undertake a check of his firearms and storage facilities as part of the state wide review. Constable Swift attended Mr Paul’s home in Gunnedah on 7 April 2004. That inspection revealed that Mr Paul had an unregistered firearm: a BRNO .22 calibre rifle. Mr Paul says he told Constable Swift that he had purchased the rifle from Windsor Firearms two months previously and that the firearms dealer had told him he would attend to the paper work. Mr Paul undertook to see that the firearm was registered. This undertaking was accepted by Constable Swift. The COPS report of this inspection confirms this, but has Mr Paul saying he purchased the rifle 8-9 years ago. This time frame is inconsistent with Constable Swift allowing the rifle to remain in Mr Paul’s possession, and inconsistent with Mr Paul’s evidence of when he purchased the rifle. Constable Swift was not asked about this when he gave evidence to the Tribunal. Constable Swift was unable to recollect how the appointment for the firearms audit of Mr Paul’s weapons came to be made.

22 Mr Paul also told Constable Swift that the Euroarms .58 cal muzzle loader was stored in the gun cabinet at Manilla, and would be moved to Gunnedah. As will be seen this did not occur.

23 Mr Paul said that in order to have the BRNO .22 calibre rifle registered he had to make a trip to Tamworth to register the weapon through a dealer. Such a trip essentially cost him a day. Because he was busy he did not make the trip immediately, but did so approximately two weeks later. In the meantime, he told the Tribunal he had acquired .310 single shot rifle from a neighbour. In his statement Mr Paul said that he wrote to Firearms Registry seeking to register this weapon, and enclosing the registration fee of $10.00. He heard nothing in reply, despite making phone inquires. His cheque was banked. Because he had heard nothing, he sought to register it with the BRNO.22. He took both it and the BRNO .22 magnum rifle to Tamworth for registration.

24 Mr Paul sent a letter to the Firearms Registry on 18 May 2004 in the following terms:

When I purchased these weapons the then owner of the Windsor Gun Shop came to my home and wrote the numbers of my guns down.

I was under the belief that all the guns were registered and that the job had been done properly. I am sending in an application for registration of these guns.”

It is this letter which the internal review officer concluded was intended to deceive the Firearms Registry as to what had occurred when Constable Swift conducted his inspection. It does not accord with Mr Paul’s own evidence as to what occurred. He was cross-examined about this and agreed that the letter did not say that the .310 was given to him. He maintained that the letter had been written for him, and that the confusion was a result of his a misunderstanding with the person who wrote the letter for him. In any case it appears that the registration of the two weapons was achieved as a result of this letter.

25 Mr Paul said that when he went to collect the Euroarms.58 cal muzzle loader from the shipping container at Manilla he found that the container was gone from beside the shed where he slept when at Manilla. He said that to move the container a tilt truck would have had to be used. Mr Paul said that he concluded that his wife had taken the container. He asked her where it was but she would not tell him. He said he had advised Constable Swift of this. He said that as a result of family law proceedings conducted in 2005 his suspicions about his wife taking the container had been confirmed. He believes the container is in the Gunnedah region but his unsure where.

26 He said he reported the missing container to the stock squad at Tamworth, although it is not clear when. He said he notified the firearms registry that the weapon was missing. He recalled Constable Swift coming down to investigate, but was adamant that his initial report was to the stock squad at Tamworth. In his evidence to the Tribunal Constable Swift said he was unsure how he became aware that the container was missing. He could not say whether or not Mr Paul has reported it to Tamworth Police. He thought he had taken the initial complaint that the container had been missing some months after he had inspected Mr Paul’s firearms.

27 Emails between the internal review officer and Constable Swift reveal that Mr Paul’s ex-wife had the shipping container removed from Manilla and taken to a property at Kelvin owned by a person involved in the Nomads outlaw motor cycle club, with claimed criminal connections. The container was left there for six months, until 1 November 2004, when Mr Paul’s ex wife had arranged for it to be moved. At that point it was that found that the container and its contents were missing and the theft were reported. Efforts to locate both have proved fruitless.

28 In the internal review it was found:

Due to your negligence it appears that your ex-wife moved the container, without your knowledge, to a property called `Lochlea' at Kelvin. It is alleged that the container was left at the property for about six months, then on I November 2004 it was discovered that the container and its contents were missing.

I find further cause for serious concern regarding Police advice that a person who is actively involved in the Nomads outlawed motorcycle gang apparently owns the property from which the container disappeared. It is therefore entirely possible that the firearm was stolen and is now in the hands of criminals.

Consequently, I find that your actions in leaving the firearm in the container created circumstances whereby your ex-wife could easily relocate it, and she is not authorised by a firearms licence. This was in direct breach of Section 39 of the Act which requires that a person who possesses a firearm must take all reasonable precautions to ensure its safekeeping, and that it is not stolen or lost, and that it does not come into the possession of a person who is not authorised to possess the firearm. It has been held that the public needs to be confident that those who are afforded the privilege of a firearms licence store their firearms in accordance with the legislative requirements.”

29 The next event of note occurred on 27 October 2004 in Gunnedah when Mr Paul assisted Police in their efforts to isolate and deal with a badly wounded and very angry cow which was loose, and creating a danger to the public, on the streets of Gunnedah. Police sought Mr Paul assistance because he is an experience cattleman and has a permit to use a tranquilizer gun. The COPS narration of the events of that day, which aside from being very entertaining, shows that the cow was rampaging through the streets of Gunnedah. Mr Paul was unable to stop the animal using two tranquiliser darts, and eight clock 9mm rounds fired by Police did not stop it. Eventually Mr Paul put the animal down firing two rounds from his .22 rifle. The report notes that:

The decision to use firearms in the yard of 97 Maitland Street and in Maitland Street was taken as a last resort in self-defence as well as to protect members of the public from serious potential danger. At no time were by-standers in danger of being caught in the firing line and Mr PAUL discharged his firearms only on the express command of Police.”

30 On 21 December 2004 an interim apprehended violence order was taken out against Mr Paul by his then ex-wife.

31 On 22 December 2004 Mr Paul left Gunnedah and moved to Albury, away from the strife associated with his separation and divorce. He continued to manage his properties and stock at both Gunnedah and Manilla, but on weekend visits. Mr Paul said that he attempted to phone the Firearms Registry to advise of the change of address, but could not get through. As a result he sent a letter to the Firearms Registry dated 27 December 2005 advising of his change of address. He produced a copy of the letter. The Firearms Registry did not receive that letter, but Mr Paul is adamant that he posted it. The internal review officer concluded it had not been posted.

32 As a result of the interim apprehended violence order, Gunnedah Police were requested in February 2005 to confiscate Mr Paul’s firearms in accordance with standard procedures. When they could not locate him they made inquires of his ex-wife who provided them with his Albury address, made allegations as to his mental stability, and claimed he had at least two unregistered firearms, including an automatic shot gun and a pistol. Gunnedah Police treated these allegations with suspicion, as they were at odds with their knowledge of Mr Paul. Albury Police then made inquiries. On 23 March 2005 they located Mr Paul at home and seized his weapons. There is no suggestion that he was in possession of unregistered firearms.

33 On 9 March 2005 Mr Paul’s ex-wife withdrew the application for an apprehended violence order against him.

34 By then Mr Paul had obtained employment with Norvic Food Processing as a stockman. He says that it is a basis of his employment that he have a firearms licence. Albury Police spoke to a Mr Taurus for “WB Management of NORVIC Foods’ who according to the report said:

it was not a requirement of taking up his position to have a firearms licence;

the company has their own firearms on the premises, being a Captive Bolt Gun, and a small calibre Centre Fire rifle, used on the premises;

the medical certificate sought, was only to confirm that he was fit to handle meat products (under AQIS), and has had the Q Fever Vaccination;

no psychological testing has been requested, nor is it reflected in the medical certificate.”

35 Mr Paul, however, produced a letter from Mr Brendon Pearce, OH & S site manager for Norvic Foods. He wrote:

“Allan Paul is employed at Norvic Food Processing (Wodonga Abattoir) commencing work March 2005 as a stockman, and it is an AQIS requirement that suspect animals are to be put down in a humane way therefore needing a current firearm license to perform his stockyard duties. Allan works on a roster working on an on call basis.”

36 Mr Paul told the Tribunal that Mr Taurus is not associated with the day to day management of the abattoir. Mr Pearce is. Mr Paul said that as a result of his loss of licence he cannot deal with large stock at work and is confined to working with small stock. He said that there is a rifle available at work to be used, but it is not well looked after and he prefers to use his own.

37 Mr Paul’s need for a category AB firearms licence and tranquilizer firearm permit remain associated with the day to management of his properties at Manilla and Gunnedah. The license is required for the humane destruction of stock, and for vermin control. The tranquilizer firearm is used to take wild cattle.

Findings of Fact

38 As already noted there is a considerable disparity between the view of these facts taken by the Applicant and those taken by the Respondent. In reaching my conclusion of fact I have taken into account my impression of Mr Paul, who impressed as a straightforward, plain talking man. He gave his evidence forthrightly, but was obviously embarrassed when his literacy became the focus of attention. He was cross-examined about the events under discussion by Mr Pisani and was not shaken. I accept that he gave honest and truthful evidence.

39 The first issue in contention is the disparity between Constable Swift’s report of how long Mr Paul said he had had the BRNO.22 for (8- 9 years) and Mr Paul’s evidence that he had purchased it a couple of months earlier. As I consider it highly improbable that Constable Swift would have taken no action against Mr Paul if, in the course of the audit, he had found that Mr Paul had owned an unregistered firearm for 8 to 9 years, I have formed the view that I should accept Mr Paul’s evidence in this regard. I think it probable that that the use of the word “years” by Constable Swift is in error, and should be “weeks”. Considered in this light, the event is explicable and consistent with Mr Paul’s evidence. In reaching that conclusion, I bear in mind the inherent improbability of Mr Paul inviting Constable Swift to conduct a firearms audit, as I am satisfied he did, if he knew he had had an unregistered weapon in his possession for eight to nine years. His explanation that he had recently acquired the weapon, and believed that registration had been attended to by the firearms dealer, is much more probable.

40 The second issue relates to the .310 single shot rifle and the letter to the Firearms Registry of 18 May 2004. That letter is at odds with both Constable Swift’s version of events, and that of Mr Paul. Mr Paul’s explanation is that he is partly illiterate and did not write the letter. It contains errors. He did not own the .310 single shot rifle when Constable Swift conducted the audit, but was given it later. The letter wrongly aggregates the circumstances in which he acquired the .310 with those in which he acquired the BRNO.22. His evidence of independent, but unverified, efforts to otherwise register the .310 supports this. The internal review officer viewed the letter as an active attempt to mislead the Firearms Registry. While this is clearly a view that can be taken, I have difficulty in discerning why Mr Paul would embark on such a deceit? What benefit would it yield? It is clear that Constable Swift was unaware of the .310: it was not found during the audit. What did Mr Paul have to gain by dishonestly telling the Firearms Registry that Constable Swift had detected it during the audit process, when he could simply have said (as he does) that he acquired it after the audit? I can perceive no benefit to him from such a deceit. I consider his explanation of mistake, as a far more likely and probable explanation than the conclusion of dishonest intent reached by the review officer. I accept Mr Paul’s explanation.

41 The next issue concerns the disappearance of the .58 muzzle loader. I accept it was stored in a secure gun cabinet bolted to the walls of a secure and locked shipping container, which was kept at the Manilla property. It seems clear that Mr Paul’s ex-wife arranged for the container to be removed from the property and taken elsewhere. In doing so, sophisticated equipment was required. At that time Mr Paul and his wife were engaged in a bitter separation. Mr Paul says he asked his wife about the whereabouts of the container and she would not tell him. He only found out what had happened in the course of family law proceedings. Mr Paul did not produce the .58 muzzle loader for inspection because he did not know where the container was. The internal review officer found that the container was removed because of Mr Paul’s “negligence” and that Mr Paul’s “actions in leaving the firearm in the container created circumstances whereby your ex-wife could easily relocate it, and she is not authorised by a firearms licence.” The review officer found that this was in direct contravention of Section 39 of the Act, “which requires that a person who possesses a firearm must take all reasonable precautions to ensure its safekeeping, and that it is not stolen or lost, and that it does not come into the possession of a person who is not authorised to possess the firearm.”

42 I do not agree with those conclusions. The .58 muzzle loader was locked inside a gun cabinet bolted inside the key lockable shipping container. There is no evidence that anyone other than Mr Paul had a key to the cabinet. The container was a large shipping container. The evidence before me is that it was 20’ x 8’ x 8’ and weighed approximately 20 tons. To move it one would require heavy lifting equipment and a large truck. It was not something that Mr Paul’s wife could simply pick up and take, even with the assistance of a few others. To remove it required planning and specialist equipment. Removing the container, however, did not give Mr Paul’s ex-wife access to the .58. To do that she required keys, which she did not have. In the light of those facts, I do not accept that the container was removed as a result of Mr Paul’s negligence. Similarly, I am not persuaded that Mr Paul failed to take reasonable precaution to ensure safekeeping of the .58 muzzle loader.

43 I can find no evidence which would allow me to conclude, as the internal review officer did, that the .58 muzzle loader is now possibly in the hands of criminals. That is an entirely speculative conclusion. Such speculation could also lead to the conclusion that the muzzle loader is still locked in the gun cabinet, inside the container, wherever it might be.

44 The events of 27 October 2004 when Mr Paul assisted Police in dealing with the cow rampaging its way through the streets of Gunnedah reflect creditably on his use and possession of firearms. Police relied on his expertise with cattle, and in the use of his weapons for the control and destruction of cow. He undertook these tasks safely and responsibly.

45 On 21 December 2004 Mr Paul’s ex-wife obtained an interim apprehended violence order against him. There is no evidence before the Tribunal as to the basis upon which it was obtained. It is clear that this order led police to seize Mr Paul’s weapons, and that in the process of inquiries Mr Paul’s ex-wife made a number of allegations as to Mr Paul’s mental stability and possession of unlicenced weapons. Her allegations were regarded with suspicion by Gunnedah Police who thought them inconsistent with the man they knew. No unregistered weapons were detected by Albury Police when they seized Mr Paul’s weapons.

46 On 22 December 2004 Mr Paul moved to Albury. There is a conflict as to whether he notified the Firearms Registry of his change of address. He has provided the Tribunal with a copy of a letter he says was sent to the Firearms Registry notifying the change. The Firearms Registry did not receive the letter. I have no reasons to disbelieve Mr Paul, whose evidence I found credible. I accept that he notified the Firearms Registry of his change of address by letter dated 27 December, 2004 which letter was not received by the Firearms Registry.

47 Given the letter from Mr Pearce, and Mr Paul’s sworn evidence as to his employment with Norvic Foods, I accept that Mr Paul was employed on the understanding that he holds a firearms licence. I note that his firearms licence and permit authorised the use and possession of weapons in NSW only, and not over the border in Wodonga. I also accept that Mr Paul continues to manage and operate his two properties at Gunnedah and Manilla, which yield his primary source of income. I accept that in the course of work on his property he regularly uses weapons for vermin control, and where necessary for the humane disposal of stock. I also accept that he needs to use a tranquilizer rifle in taking wild cattle as part of his occupation: this is a matter concerning which there was no dispute before me.

48 Finally, I note that there is no evidence before me which points to Mr Paul suffering from any mental illness or being otherwise unstable.

Discussion

49 In the course of submission, Mr Pisani, for the Commissioner, conceded that the outcome of this review turned on my assessment of Mr Paul’s credibility. In the end I have found Mr Paul impressed as a genuine and honest witness, and I have accepted his evidence.

50 I do not accept, as the internal review officer did, that Mr Paul has intentionally supplied the Commissioner with information which was false or misleading. He did provide a letter, written by another on his behalf, which contained inaccurate information. I am satisfied that he supplied this information without any intention to mislead or deceive. I therefore find that that there is no ground for revoking Mr Paul’s licence on the ground that he has knowingly supplied false or misleading information under.s24(2)(b)(1).

51 With respect to the issue of whether Mr Paul has breached the provisions of the Act or the Regulation there are a number of issues to be determined.

52 First, I am not satisfied that Mr Paul has breached the safekeeping requirement of s.39 and s.40 of the Act. Storing the .58 muzzle loader in an approved lockable and padlocked gun cabinet, bolted to the side of a shipping container of the dimensions and weight disclosed by the evidence, in my view satisfied the requirements of those sections. The storage arrangements for the .58 muzzle loader were reasonable arrangements to ensure the objects set out in s.39.

53 Secondly, with respect to the BRNO .22 I am not satisfied that Mr Paul has breached s.36 of the Act. On the evidence before me he purchased and possessed that weapon in the knowledge and belief that the firearms dealer was processing the papers to register the weapon in his name, some two months before Constable Swift conducted the audit. I accept that he did not know and could not be reasonable expected to have known that the firearm was not duly registered. It should be noted that throughout the materials before me the BRNO .22 is described a “unregistered,” but it is not clear whether this means that the particulars of the weapon were not registered, or that Mr Paul’s ownership of it was not registered, or both. Given the evidence that Mr Paul had purchased the weapon from a reputable gun dealer I infer that the description is intended to convey that Mr Paul’s ownership of it was not registered.

54 Thirdly, with respect to the .310 aside from the statement in the internal review that it was unregistered there is no evidence which indicates in what sense it was unregistered. Mr Paul appears to have proceeded on the basis that the firearm was registered and sent forms together with a cheque to the Firearms Registry seeking its transfer to his name, apparently in compliance with s.37(2). The Firearms Registry claims not to have received this but Mr Paul, says his cheque was cashed. If the weapon was in fact registered it would seem that Mr Paul has complied with his obligations. If the weapon itself was unregistered then Mr Paul has breached s.36 by possessing an unregistered firearm. There is no evidence before me as to Mr Paul’s belief as to whether or not this weapon was registered, other than his conduct in sending off the necessary form to the Firearms Registry. What is clear is that he procured its transfer or registration in his name when he made the trip to Tamworth to register the BRNO .22. Given the uncertainties I cannot be satisfied that Mr Paul was in breach of s.36. I would add that if he were, the breach would be explicable and one which I would not regard as showing a deliberate disregard of the Firearm Act 1996.

55 Fourthly, I am not satisfied that Mr Paul has breached the requirement that he notify the Commissioner of his change of address within 7 days (Clause 13 of the Firearms (General) Regulation 1997). On the evidence before me I accept that Mr Paul wrote to the Commissioner advising of the change within time.

56 Because I do not consider that any of these four matters demonstrate a breach of the Firearm Act 1996 or the Firearms (General) Regulation 1997 I am not satisfied that there is any basis upon which a revocation of his licence could be considered under s.24(2)(b)(ii).

57 I accept that Mr Paul continues to own and operate two properties and that the majority of his income is derived from primary production. He uses the firearms to which his category AB licence applies in connection with his activities as a primary producer. While he is also employed as a stockman, an employment which also requires a firearms licence, that does not detract from the fact that he continues to have a genuine reasons for holding a category A and B firearms licence, that of primary production.

58 I also accept Mr Paul’s evidence as to his use of a tranquiliser rifle in controlling and acquiring will cattle. I accept that he needs the use of a tranquiliser rifle in the taking and control of wild cattle which is a necessary part of his primary production.

59 The internal review officer determined that Mr Paul’s continued possession and use of a firearm constituted a risk to public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, Deputy President Hennessey said:

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk

60 Taken as a whole it is my view that the evidence discloses that Mr Paul has a good awareness of and has complied with his obligations under the Firearm Act 1996: Cook -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at 34. There is no evidence before me to suggest he is not of good character. All of the evidence points to him being a responsible and safe user of firearms, and to him exercising responsible and continuous control over his firearms, save for when his wife removed the container (a matter which was not foreseeable): Coates v Commissioner of Police, New South Wales Police Service [2001] NSWADT 56 at 33- 34. Indeed, the incident with the rampaging cow reflects creditably on Mr Paul, and is evidence of his responsible and safe use of a firearm in the protection of the public. On the evidence I am satisfied that Mr Paul will not pose a risk to the public if he has access to firearms.

61 On reviewing the decision to revoke Mr Paul’s category AB firearms licence, I am not satisfied that Mr Paul’s category AB firearms licence should be revoked. As a result the decision to revoke Mr Paul’s category AB firearms licence is set aside.

62 With respect to Mr Paul’s tranquilizer firearm permit, for the same reasons as those discussed above I am not satisfied that Mr Paul’s tranquilizer firearm permit should be revoked. As a result the decision to revoke Mr Paul’s tranquilizer firearm permit is set aside.

Decision

2. The decision to revoke Mr Paul’s tranquilizer firearm permit is set aside.

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Citations

Paul v Commissioner of Police, NSW Police [2006] NSWADT 70

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

3

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Cook v Commissioner of Police [2003] NSWADT 30

Coates v Commissioner of Police [2001] NSWADT 56

CITATION:	Paul v Commissioner of Police, NSW Police [2006] NSWADT 70
DIVISION:	General Division
PARTIES:	APPLICANT Alan Rodney Paul RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053352
HEARING DATES:	16/12/2005
SUBMISSIONS CLOSED:	12/16/2005
DATE OF DECISION:	03/09/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Coates v Commissioner of Police, New South Wales Police Service [2001] NSWADT 56 Cook -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
REPRESENTATION:	APPLICANT T Morgan, Solicitor RESPONDENT W Pisani, Agent
ORDERS:	1.The decision to revoke Mr Paul’s category AB firearms licence is set aside; 2.The decision to revoke Mr Paul’s tranquilizer firearm permit is set aside