Pollard v Commissioner of Police

[2021] NSWCATAD 252

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pollard v Commissioner of Police [2021] NSWCATAD 252

Hearing dates:

19 August 2021

Date of orders:

25 August 2021

Decision date:

25 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member

Decision:

The respondent’s decision to revoke the applicant’s licence is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Revocation of licence – Whether it is in the public interest for applicant to continue to hold licence – Whether applicant contravened a condition of the licence – Whether correct and preferable decision is to affirm revocation of licence

PRACTICE AND PROCEDURE - Where respondent applied for order under s 59 of the Administrative Decisions Review Act 1997 that respondent not be required to lodge a confidential document under s 58 of that Act - Whether order appropriate in circumstances where respondent sought to rely upon document at hearing

Legislation Cited:

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Firearms Regulation 2006 (NSW) (repealed)

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

CYL v YZA [2017] NSWCATAP 105

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Kioa v West (1985) 159 CLR 550

Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368

Oliver v Commissioner of Police, NSW Police Force [2017] NSWCATAD 95

Pollard v Commissioner of Police, NSW Police [2021] NSWCATAD 227

Ward v Commissioner of Police, NSW Police Force [2000] NSWADT 28

Category:

Principal judgment

Parties:

Howard Pollard (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Tankard’s Law (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/00159311

Publication restriction:

Non-publication orders have been made in respect of certain confidential material pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

1. Mr Pollard’s firearms licence was revoked by the respondent following an inspection of his property at which police found that Mr Pollard was not storing his guns and ammunition safely.

2. I have found that Mr Pollard has contravened the conditions of his licence on a number of occasions since 2009. I have also found that it is not in the public interest for him to continue to hold a firearms licence, principally because this would pose a risk to public safety.

3. For these reasons, I have affirmed the respondent’s decision to revoke Mr Pollard’s firearms licence.

Background

4. Mr Pollard lives at a rural property in New South Wales. He conducts farming activities on the property.

5. According to the material filed by the respondent (“the Commissioner”), Mr Pollard has held a New South Wales firearms licence since at least 1998. Mr Pollard’s evidence is that he has lawfully been using firearms for 68 years. He is about 79 years old.

6. Mr Pollard’s 1998 firearms licence was issued for various purposes including for recreational hunting/vermin control and primary production. He has renewed it every few years since 1998.

7. In about 2002, Mr Pollard had a custom-built gun room constructed in his home.

8. A licensing officer inspected Mr Pollard’s gun room some time before 2009 and found that it exceeded the minimum requirements for firearms storage.

9. On 10 December 2009, Senior Constable Michelle Grinter inspected Mr Pollard’s firearms and firearms storage. The firearms were stored in the gun room.

10. Senior Constable Grinter advised Mr Pollard that the gun room did not meet safe storage requirements and told him he was required to obtain a gun cabinet. Mr Pollard purchased a gun cabinet and installed it in his shed. On 8 May 2010, Senior Constable Grinter inspected the cabinet and found it to be satisfactory.

11. In 2013, Mr Pollard applied for a licence in Categories A, B and C. Prior to this, he had held a licence in Categories A and B only. On the application form, he stated that he needed the Category C licence to kill foxes, feral cats and starlings.

12. Mr Pollard was issued a Category ABC licence in 2014.

13. On 15 March 2020, Senior Constable Grinter attended Mr Pollard’s property to sight his firearms. The COPS report of the event records that the inspection occurred following the receipt of information that Mr Pollard leaves a shotgun lying on a table unsecured after using it to scare birds from his grape vines.

14. At this inspection, Senior Constable Grinter activated body worn video. She introduced herself to Mr Pollard and told him she wanted to sight his registered firearms. Mr Pollard said to her, “It’s a bit awkward at the moment because I’ve just put some away and I’ve still got them half loaded. I’ve been shooting starlings… by the time I go and get the keys, get the things, [the starlings] they’re gone.”

15. Mr Pollard took Senior Constable Grinter to the gun room in his home. She observed, in a gun case that was not lockable, a WW Greener 12 gauge double barrel shotgun. She also observed a large amount of boxed ammunition on shelves and in a metal tool chest.

16. Senior Constable Grinter told Mr Pollard that firearms and ammunition could not be stored together and asked him how long the firearms had been with the ammunition. Mr Pollard did not answer the question. When asked when the firearm was put in the storage room, Mr Pollard said he could not remember, but that it would have been a month or two ago, since the starlings got bad.

17. Mr Pollard then took Senior Constable Grinter to the gun cabinet in his shed and opened it. Inside was a single barrel semi-automatic Beretta shotgun with a cartridge in the chamber, and a trigger lock fitted to the firearm. There were cartridges sitting on top of the cabinet. When asked to unload the firearm, Mr Pollard stated that he was not sure how to get them out. He then removed six live cartridges from the shotgun.

18. Mr Pollard told Senior Constable Grinter that his Beretta .22 calibre rifle was stored at his son’s neighbouring property. He said that his son was away and that he had been using the rifle to shoot sparrows to feed his son’s cat. Mr Pollard offered to go and get the firearm. Senior Constable Grinter asked him to wait so that she could accompany him.

19. Mr Pollard stated that he was going to check that the pump for his irrigation system was working. When he returned, he had collected the Beretta semi-automatic rifle from his son’s property next door.

20. Senior Constable Grinter accompanied Mr Pollard to his son’s residence and inspected the cabinet in the garage on the property. The Senior Constable informed Mr Pollard that the door of the safe in which he had stored the rifle did not comply with the requirements for safe storage in relation to Category C fireams, and Mr Pollard acknowledged this.

21. Mr Pollard grows grapes on his property and his evidence is that he has “previously conducted cellar door sales.” It is unclear, from the evidence, whether he still does so.

22. During Senior Constable Grinter’s inspection on 15 March 2020, Mr Pollard told Senior Constable Grinter, “I don’t leave the gun sitting anywhere with customers. If it’s outside I have the trigger guard there. If people are there waiting, I don’t empty the gun out.”

23. The Senior Constable told Mr Pollard that the police had received information that he left firearms lying on a table and not secured in the safe. Mr Pollard replied: “If it was on the table, it would have had a trigger guard on it and I wouldn’t have been far from it.”

24. Following the inspection, Mr Pollard’s firearms licence was suspended. On 27 March 2020, infringement notices were posted to Mr Pollard for the following offences:

1. Holder of Category A or B licence not have approved storage (firearm stored in with ammunition); and

2. Category C licensee not comply with storage needs (firearm stored loaded).

25. The Commissioner’s delegate made a decision, on 20 November 2020, to revoke Mr Pollard’s Category ABC firearms licence. This decision was based primarily upon safe storage breaches identified by police on 15 March 2020.

26. On 3 June 2021, Mr Pollard applied to the Tribunal for administrative review of the revocation decision under s 75(1)(c) of the Firearms Act 1996 (NSW). An extension of time has been granted in respect of that application (see Pollard v Commissioner of Police, NSW Police [2021] NSWCATAD 227).

Section 59 application

27. The Commissioner applied, under s 59 of the Administrative Decisions Review Act 1997 (NSW), for an order that the Commissioner not be required to lodge a copy of a document under section 58 of that Act (“the s 59 application”). I considered that application in a decision made on the papers prior to the hearing but deferred determination of the application to the hearing. However, I made an order under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) prohibiting the disclosure of that material to the applicant (Pollard v Commissioner of Police, NSW Police [2021] NSWCATAD 227 (“the interlocutory decision”)).

28. By the time of the hearing, the only document the subject of the s 59 application was an information report. As indicated in the interlocutory decision, I am satisfied that it is desirable that the applicant be prohibited from having access to this document, for reasons given in that decision.

29. In the interlocutory decision, I expressed concerns that the s 59 application may be misconceived, in circumstances where the Commissioner was seeking an order relieving him of the obligation to lodge the information report under s 58 of the Administrative Decisions Review Act, but where the Commissioner apparently wanted to rely upon the information report as confidential evidence.

30. At the hearing, the Commissioner’s representative, Mr Winram, clarified that the Commissioner did seek to rely upon the information report in evidence (without the applicant having access to it, as a result of the confidentiality orders made by me). He said, however, that he sought a s 59 order because, under s 58(5) of the Administrative Decisions Review Act, the principal registrar of the Tribunal is to grant reasonable access to the applicant to any copy of a document lodged under s 58 by an administrator. Further, a party to proceedings is generally entitled to inspect documents in the Registry relating to the proceedings under cl 42 of the Civil and Administrative Tribunal Rules 2014 (NSW). Mr Winram also submitted that the s 59 order was needed because of the obligation under s 58(1) to lodge relevant documents within 28 days of the application being made.

31. Section 58(5) of the Administrative Decisions Review Act, on which the Commissioner relied, is subject to s 58(7), which provides relevantly that nothing in s 58 requires the disclosure of, or the granting of access to, any document in contravention of an order made under s 64 of the NCAT Act. The order made under s 64 of the NCAT Act in respect of the information report obviates, to some extent, the need for the s 59 order. However, the order under s 64 of the NCAT Act was made after the expiry of the 28-day period referred to in s 58(1) of the Administrative Decisions Review Act.

32. The applicant did not object, at the hearing, to the making of the s 59 order. In those circumstances, and having regard to the submissions made on behalf of the Commissioner, I decided to grant the s 59 application and I made an order under that provision in respect of the information report at the hearing. The effect of this was to relieve the Commissioner of the obligation to lodge the information report within 28 days of the application to the Tribunal, under s 58.

33. Given the applicant’s position, I did not consider, in detail, the construction of s 59 of the Administrative Decisions Review Act. I have not considered whether it would generally be appropriate to make an order under s 59 in respect of a document which an agency seeks to rely upon in evidence.

Hearing and evidence

34. The hearing of Mr Pollard’s application was conducted by telephone. Mr Pollard’s solicitor, Mr Groch, appeared at the hearing for the applicant. Mr Winram appeared for the Commissioner.

35. Mr Pollard relied upon an affidavit made by him on 4 August 2021.

36. The Commissioner relied upon a statement of Senior Constable Grinter dated 13 August 2021 and a statement of Nigel Turney dated 12 July 2021. Annexed to Senior Constable Grinter’s statement was a USB containing video footage from the body-worn video on 15 March 2020. The Commissioner also relied upon the s 58 documents filed in the proceedings (including supplementary s 58 documents).

37. Neither party chose to give oral evidence at the hearing, and neither party elected to cross examine the witness or witnesses of the other party.

38. The Commissioner also sought to rely upon the information report the subject of the s 59 application as confidential evidence. After the open hearing had concluded, I held a closed hearing from which the applicant and his representative was excluded. The purpose of that hearing was to consider whether to admit the information report into evidence. Mr Winram made oral submissions in support of the Commissioner’s position that the Tribunal should admit the information report into evidence.

39. There are potentially issues of procedural unfairness if a party is not permitted to see a document upon which the Tribunal relies (at least where the document contains information which is credible, relevant and significant to the decision and the substance of any allegations in that document are not disclosed to the applicant: see Kioa v West (1985) 159 CLR 550). The Tribunal’s reliance upon a document the applicant has not seen may also create an appearance of unfairness.

40. The Commissioner did not submit that ss 11(5A) or 75(5) of the Firearms Act 1996 (NSW) applied. Section 11(5A) applies if the Commissioner forms the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that the person is a risk to public safety and the issuing of the licence would be contrary to the public interest. Section 75(5) requires the Tribunal to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in s 11(5A).

41. Having regard to the importance of the principle of open justice (see, for example, CYL v YZA [2017] NSWCATAP 105 at [96]), the principles of procedural fairness and the contents of the information report, I decided in my discretion not to admit the document into evidence.

Legal framework for revocation decision and review

42. Each firearms licence is subject to a condition that the licensee must comply with the relevant safe keeping and storage requirements under the Firearms Act (Firearms Act, s 19(2)(a)). Those requirements are set out in Part 4 of the Firearms Act.

43. Mr Pollard’s licence was revoked on the bases that it was not in the public interest for him to continue to hold the licence (Firearms Act, s 24(2)(d), Firearms Regulation 2017 (NSW), cl 20) and that he had contravened a condition of the licence (Firearms Act, s 24(2)(b)(iii)).

44. In determining Mr Pollard’s application for administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable law (Administrative Decisions Review Act, s 63(1)).

Mr Pollard’s evidence and submissions

45. Mr Pollard does not dispute the two offences of 15 March 2020 for which penalty notices were issued. He submits, however, that the correct and preferable decision is not to revoke his licence.

46. In support of this outcome, Mr Pollard submits that there is “virtually no risk” if he were to be given access to firearms (Ward v Commissioner of Police, NSW Police Force [2000] NSWADT 28 at [28]). This was because, in his submission:

1. He has a long history of licensed firearm ownership;

2. Two offences were dealt with by way of penalty notice rather than prosecution;

3. Neither of the offences placed the public safety at risk;

4. No offence was committed against a member of the public;

5. The offences occurred on a private farming property;

6. The offences did not relate to the manner of use of a firearm;

7. The storage of the loaded firearm was of short duration with Mr Pollard in close proximity;

8. There is no prior pattern of offending behaviour.

47. Mr Groch submitted, for Mr Pollard, that if the Tribunal had any concerns about Mr Pollard’s storage of firearms, that could be dealt with by the imposition of appropriate conditions on his licence.

48. Mr Pollard stated in his affidavit that, as a result of the revocation of his firearms licence, he has not been able to undertake vermin control and he has lost a harvest of grapes. Further, foxes now regularly attack and kill his lambs, and feral cats are in abundance on the property. In his opinion, the loaded shotgun posed only a minimal risk to public safety, as it was in a locked gun cabinet with a trigger guard preventing it from being fired and was not left unattended for very long.

What is the correct and preferable decision?

49. Mr Pollard’s breaches of safe storage requirements are not limited to the occasion on 15 March 2020 when Senior Constable Grinter conducted an inspection.

50. In the conversations Mr Pollard had with the Senior Constable on that day, he acknowledged that he had left his gun sitting on a table when members of the public were present at his property, or when it was open to the public, albeit that the gun had a trigger guard on it and that he was not far away. He appeared to consider this to be acceptable. In my opinion, that was a serious breach of the condition of his licence requiring him to comply with safe keeping and storage requirements under the Firearms Act (Firearms Act, s 19(2)(a)).

51. Those requirements include, that when any firearm to which a Category A or B licence applies is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable (Firearms Act, s 40(1)(a)). When any firearm to which a Category C licence applies is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated (Firearms Act, s 41(1)(a)).

52. On the day of the inspection, Mr Pollard had committed multiple breaches of the safe storage requirements. Contrary to s 40(1)(c) and (d) and 41(1)(c) of the Firearms Act, he had stored ammunition together with a Category AB firearm; he had ammunition loose (unsecured) in his garage or shed; and he had stored a Category C firearm with ammunition.

53. Mr Pollard had also failed to comply with safe storage requirements in 2009, when he had failed to keep firearms in a gun cabinet. Mr Pollard sought to minimise this in his evidence, expressing the opinions that “having the firearms stored in the gun room posed no threat to public safety” and that “my shed … is a less secure location than the gun room within the house.” That suggests that Mr Pollard considered that the storage requirements imposed by legislation are unreasonable.

54. Mr Pollard’s comments about his conduct in 2020 demonstrates a similar disregard of the law governing the safe storage of firearms and a lack of appreciation of the seriousness of non-compliance with safe storage requirements. Mr Pollard’s view that the loaded shotgun, when locked in a gun cabinet, posed only a minimal risk to public safety, is consistent with an attitude that his offences were not serious. He stated in his affidavit that the offences were “in respect of storage issues, not the actual improper use of firearms” and that the “offences weren’t serious enough to be taken to Court over.” I also infer that Mr Pollard considered that the offences were not serious from his response to Senior Constable Grinter, upon being told that his firearms licence would be suspended and infringement notices issued. He responded: “That’s pretty savage.”

49. Mr Pollard stated in his affidavit that he was “fully conversant with firearms storage requirements” and that he would “in future comply with the requirements.” I am not confident that that is the case, having regard to the evidence as a whole. When Senior Constable Grinter first asked Mr Pollard whether his son’s safe storage cabinet complied with Category C requirements, he stated he was not sure whether it did. It was only after the Senior Constable had measured the thickness of the door and walls of the cabinet in Mr Pollard’s presence that Mr Pollard agreed that it did not comply. I infer that Mr Pollard had not checked whether he son’s storage cabinet was compliant before placing his Category C firearm inside it.

50. It is concerning that Mr Pollard retrieved his semi-automatic weapon from his son’s property on 15 March 2020, notwithstanding that Senior Constable Grinter had asked him not to do so. This means that she was not able to observe whether he had left it in a locked cabinet or not. I accept the respondent’s submission that, as a result of Mr Pollard’s conduct, it remains unknown whether the applicant was taking any steps to regularise potentially non-compliant storage arrangements on his son’s property.

51. In addition to the safe storage breaches, the Commissioner provided evidence that the applicant had contravened s 7A(2)(b) of the Firearms Act. That provision makes it an offence to contravene a condition of a firearms licence.

52. It was a condition of Mr Pollard’s licence that he be a member of at least one approved shooting club and participate in at least four shooting activities per year. In 2013, 2014 and 2019, Mr Pollard attended a shooting club only once; in 2016 to 2018 Mr Pollard did not attend at all; and in 2015 he attended only three times. I am satisfied that he thereby contravened cl 107 of the Firearms Regulation (and, before that, cl 96 of the Firearms Regulation 2006 (NSW)).

53. It follows that Mr Pollard contravened a variety of conditions of his licence, including safe storage conditions and conditions requiring participation in approved shooting club activities, between 2009 to 2020.

54. I accept the respondent’s submission that the applicant’s disregard for the safe keeping requirements imposed by the firearms regime to protect public safety is exhibited through his numerous contraventions of the Firearms Act and Firearms Regulation and that, when viewed as a whole, the applicant’s conduct demonstrates that he has an insufficient understanding of his obligations and duties to hold a firearms licence.

55. I find that it is not in the public interest for Mr Pollard to hold a firearms licence. This is so, having regard to the “significant emphasis” which is placed by the Firearms Act “upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant” (Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 at [1]). The legislation requires strict compliance because misuse of firearms can result in catastrophic consequences (Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117]; Oliver v Commissioner of Police, NSW Police Force [2017] NSWCATAD 95 at [17]). I consider that Mr Pollard would pose a risk to public safety if his firearms licence were to be reinstated.

56. For these reasons, the correct and preferable decision is to affirm the Commissioner’s decision to revoke Mr Pollard’s licence.

Orders

63. I make the following orders:

1. The respondent’s decision to revoke the applicant’s 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 New South Wales Civil and Administrative Tribunal.

Registrar

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

Registrar

Decision last updated: 26 August 2021