Ravenscroft v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 181

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Ravenscroft v Commissioner of Police, NSW Police Force [2024] NSWCATAD 181

Hearing dates:

22 August 2023

Date of orders:

03 July 2024

Decision date:

03 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE LAW — firearms licensing — licence revocation — contravention of special condition — contravention of Act or regulations — public interest

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 131 ALR 657

Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43

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

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

McDonald v Director-General of Social Security (1984) 1 FCR 354

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

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Shi v Migration Agents Registration Authority [2008] HCA 31

Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226

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

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

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Gilbert James Ravenscroft (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/00125808

Publication restriction:

Nil

REASONS FOR DECISION

1. Gilbert James Ravenscroft (the Applicant) has held a category AB firearms licence (licence) at various times since his licence was first issued in 1993, including most recently under the Firearms Act 1996 (NSW) (the Act).

2. On 17 October 2020, the Applicant’s licence was suspended. On 8 June 2021, the suspension was lifted, and a special condition was imposed on the Applicant’s licence (Special Condition).

3. On 17 November 2022, the Applicant’s licence was revoked by the Commissioner of Police, NSW Police Force (the Respondent).

4. The Applicant sought internal review of that decision on 14 December 2022, and on 23 March 2023, a delegate of the Respondent affirmed the decision to revoke the Applicant’s licence on varied grounds.

5. On 18 April 2023, the Applicant applied to this Tribunal for administrative review of the Respondent’s decision. No issue was taken by the parties in relation to the jurisdiction of the Tribunal in this matter.

Third persons

6. In these reasons, in order to protect the anonymity of certain third persons, I will refer to them by reference to their first name only.

Applicable legislation

7. The general principles and objects of the Act are set out in s 3 as follows:

(1)  The underlying principles of this Act are—

(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, and

(c)  to facilitate a national approach to the control of firearms.

(2)  The objects of this Act are as follows—

(a)  to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(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 supply of firearms,

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

(f)  …

8. Section 11 of the Act relevantly provides:

11   General restrictions on issue of licences

…

(3)  A licence must not be issued unless—

(a)  the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

…

(4)  Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of—

(a)  the applicant’s way of living or domestic circumstances, or

…

(7)  Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

…

9. Section 19(2) of the Act provides that each licence is subject to the following condition:

(a)  the licensee must comply with the relevant safe keeping and storage requirements under this Act,

…

10. Section 24 of the Act sets out the various grounds on which a licence may be revoked and s24(2) relevantly provides as follows:

(2)  A licence may be revoked—

(a)  for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b)  if the licensee—

(i)  supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(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

…

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

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

The evidence

12. The matter was heard on 22 August 2023. The Applicant relied upon a statement from the Applicant dated 2 July 2023 (exhibit A1). The Applicant gave short oral evidence at the hearing and was cross-examined. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1) and a supplementary bundle of s 58 documents (exhibit R2).

Submissions

13. The Applicant relied on written submissions dated 13 August 2023 and the Respondent relied on written submissions dated 1 August 2023. Both parties made oral submissions at the hearing.

Role of the Tribunal

14. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

15. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [23]. Accordingly, the objects and purposes of the Act are relevant.

Issues

16. In the Respondent’s written submissions, the Respondent’s position was set out as follows:

1. The Applicant has come to the attention of police on numerous occasions due to incidents, including domestic violence incidents with Michelle, who has been the subject of reports regarding mental health issues and drug use;

2. The Applicant has been dishonest with police and in submissions about matters concerning a female (Michelle) that the Respondent submitted he had been in an interpersonal relationship with since at least 2014;

3. The Applicant has contravened the Special Condition;

4. The Applicant has failed to notify the Respondent of the changes in his safe storage address;

5. In consideration of the factors outlined in (a) to (d) above, the Tribunal should be satisfied that “it is not in the public interest for the licensee to continue to hold the licence”; and

6. The correct and preferable decision to be made by the Tribunal is to affirm the decision of the Respondent to revoke the Applicant’s licence.

Has the Applicant contravened a provision of the Act, the Regulation or the Special Condition

Background to the Special Condition

17. It was not disputed that on 24 October 2010, police attended the Applicant’s residence in Sydney (Applicant’s residence) and conducted a safe storage inspection of the safe on the premises and found that it met the requirements in the Act and that this was the Applicant’s safe storage address recorded by the Firearms Registry. It was also not in dispute that the Applicant had had a relationship with a female named Michelle, although the parties did not agree as to the precise characterisation of that relationship.

Previous Incidents

18. The Respondent relied on a number of records from the NSW Computerised Operational Policing System (COPS) database.

2014 Incidents

19. The Respondent relied on NSW Police Force COPS Event Ref No: E 55001316 (6 March 2014 COPS Event) which refers to an event on 6 March 2014 at a unit in Sydney, where the police attended in relation to a call received from a member of the public (6 March 2014 Incident). It is recorded that Michelle told police that she had had an argument with the Applicant for entering her unit without permission. It is also recorded that police made further enquiries and established that the Applicant and Michelle had been in an “intimate personal relationship” which included a sexual relationship, and that Michelle lived in his apartment, whilst the Applicant generally resided elsewhere. It was recorded that Michelle was not on the lease and did not pay any rent. The duration of the relationship at that time was stated to be “1 year” according to the Applicant and “3 months” according to Michelle.

20. Michelle advised police that the Applicant had not hit or assaulted her in any way. The Applicant is referred to in the 6 March 2014 COPS Event as the “victim”. It is recorded that police ascertained that the Applicant had gone to the unit earlier that day to see if Michelle had attended TAFE for the day as he was paying for her to do so. It is recorded that the Applicant realised that Michelle had not attended TAFE and had allegedly placed an advertisement to prostitute herself to other men online and that the Applicant had told her she was no longer welcome to stay if she was “not faithful to him as per their verbal agreement”. It is recorded that Michelle had become upset and began yelling and screaming at the Applicant. The police observed no injuries to Michelle and whilst the Applicant had a small red mark to his head, he refused to answer questions about this. He then signed a notebook stating that he had no fears for his safety and no further police involvement was required.

21. NSW Police Force COPS Event Ref No: E 54477746 (24 March 2014 COPS Event) refers to an event on 25 March 2014 (24 March 2014 Incident) in which it is recorded that police responded to the same address as that in the 6 March 2014 Incident as the result of a call relating to a verbal and physical argument at that property. Police spoke to the Applicant, who was described as the “Victim” and Michelle as the “PN”. It is recorded that the Applicant told police that they had had an argument about money and Michelle stated that their relationship was “complicated”. The Applicant advised police that he was not fearful of Michelle, and they stayed until she had gathered her personal belongings. The Applicant was offered a “DV yellow card” but he declined it.

2015 Incident

22. NSW Police Force COPS Event Ref No: E 57422566 (2015 COPS Event) refers to an incident on 16 February 2015 (2015 Incident), where police were called to the Applicant’s residence. The Applicant advised police that he had allowed Michelle to stay in a self-contained detached garage the previous day and then left the premises. It is recorded that when he returned the next morning, he had found drawers open inside the main residence and a work mobile telephone had been taken. The Applicant nominated Michelle as a possible “POI” in relation to the incident. Police observed that in a bedroom in the main house, the sheets were dishevelled and had what appeared to be a blood stain on them. It is recorded that when asked about his relationship with Michelle, the Applicant was very evasive and claimed that she was a former employee. When probed, it is recorded that police discovered that the Applicant had recently purchased hotel rooms for Michelle around the Mascot area and had previously provided other accommodation for her. He stated that he was doing so out of generosity. It was recorded that the Applicant later admitted that he had had previous sexual relations with Michelle.

23. The 2015 COPS Event records that when Police contacted Michelle, she stated that she had been given permission by the Applicant to stay within the main house and that he stayed with her until late. She said that she had not provided any sexual favours and stated that when she left in the morning, she left with the Applicant’s mobile without realising that that she had taken it. She advised police that she had told the Applicant that she would return it at their next “encounter” and also told police that she was responsible for the blood on the sheets. Police located some of Michelle’s personal belongings at the Applicants’ residence and booked them into St Marys Police Station. It is recorded that Michell returned the mobile phone to the Applicant but did not retrieve her property from police.

2016 Incident

24. NSW Police Force COPS Event Ref No: E 61501125 (2016 COPS Event) refers to an Incident on 2 August 2016 (2016 Incident) in which police attended the Applicant’s residence at the request of the Applicant in relation to a report of a verbal argument. It is recorded that Michelle attended the Applicant’s residence to provide him with a sexual service. At the time of arrival, the Applicant told Michelle that he did not want her at the premises. It is recorded that Michelle became angry with the Applicant and began to bang on the front door and demanded money for attending. Police spoke to both parties, and recorded that Michelle appeared to be under the influence of an intoxicating substance. Michelle then told police that she was a frequent methamphetamine user. No action was taken, and it is recorded that the Applicant conveyed Michelle to an unknown address.

2020 Incident

25. NSW Police Force COPS Event Ref No: E 76726758 (2020 COPS Event) refers to a series of events on 16 October 2020 (2020 Incident) in and around the Ibis Hotel in Mascot (the hotel). Police attended this location at approximately 7 am, following a report about a patient injured in a traffic accident. The parties involved in the 2020 Incident were the Applicant, Michelle and a male named Brendan. It was recorded that Brendan and Michelle had been in a relationship for approximately ten months.

26. The Respondent relied on a transcript of the recorded interview conducted by police with the Applicant following the 2020 Incident (part exhibit R1). Following an earlier caution, the Applicant told police that Michelle had phoned him that morning from the hotel and said that Brendan had bashed her and stolen her mobile phone. The Applicant said that since her mother had died, he had been giving Michelle a little bit of money each day but did not want to give her too much “because she may not behave herself”. The Applicant had arranged to meet her and give her enough money to pay for the hotel room and to buy some food and a mobile phone. He stated that he took Michelle to “KFC” and as they were driving back, Brendan was driving behind, and then alongside, the Applicant’s car and shouting threats at the Applicant. The Applicant said he had driven into a dead end road and turned the car around to drive out. Brendan then stopped his car and was standing on the side of his car, before he suddenly stepped in the path of the Applicant’s car, and was struck by it.

27. The Applicant stated that he had been told that Brendan was high on “meth” at the time, and it looked as though he had stepped out deliberately. The Applicant said that based on the threats that had been made, he assumed that Brendan had a weapon, so he drove back to the hotel, which was about 50 metres away and started to call an ambulance. At that time, Brendan appeared and the Applicant instead phoned police. He stated that Brendan then physically attacked him. Later, he told police that the threats made by Brendan, included a threat to kill the Applicant, and at some stage, Brendan had yelled “I told you to stay away from her, or something like that”.

28. The Applicant told police that he had known Michelle for “maybe” seven years and that he knew Brendan through Michelle, that she had gone to live with Brendan a few months previously, and that they had “split up” in July. The Applicant said that he had met Brendan “once in person” two to three weeks previously, when the Applicant was helping Michelle, and Brendan had shown up unexpectedly and started quarrelling with her. When asked if the Applicant and Michelle were in a relationship, he said “Like casual friends, you’d probably call it friends with benefits”. He said that Michelle had told him Brendan was a “meth head” and was a “fairly violent individual”, who had hit Michelle and robbed her a few times.

29. The Applicant was found to be in possession of a “flick” knife and told police that it was just a pocket knife and that he had been using it the previous day for cutting plastic wrapping straps, had put it is his pocket and left it there. The Applicant was subsequently charged with having custody of knife in public place (first offence). It was not disputed that following a hearing at the Downing Centre Local Court on 5 March 2021, that charge was dismissed, and the Applicant was found not guilty of the offence. It was also not in dispute that a provisional Apprehended Violence Order (PAVO) was taken out by Police against the Applicant in relation to Brendan and that it was no longer in effect after 5 March 2021.

30. As a result of the 2020 Incident, the Applicant’s firearms licence was suspended by police on 17 October 2020 and his five firearms were seized.

March 2021 Incident

31. NSW Police Force COPS Event Ref No: E 79202246 (March 2021 COPS Event) records that on 22 March 2021, police attended the Applicant’s residence in response to a call. It is recorded that Michelle had been banging on the Applicant’s door to speak to him in relation to her phone credit and that she resided in the garage with the consent of the Applicant. Michelle was knocking aggressively on the front door and then the window, causing the window to break and her knuckle to bleed. Police attended and obtained details from Michelle and the Applicant. Michelle offered to pay for the damage and the Applicant refused to provide a statement to police in relation to the incident.

Special condition

32. On 8 June 2021, the Firearms Registry wrote to the Applicant (Notice of Special Condition) to advise that the suspension of his licence had been lifted with the following Special Condition imposed:

The [Applicant] Is prohibited from possessing or storing firearms, firearms parts and ammunition at [the Applicant’s residence] of…, or any location where [Michelle] resides or frequents.

33. The Notice of Special Condition indicated that a photographic advice letter would be sent to the Applicant that he would need to take to a Service NSW office for the issue of a new photo licence with the above Special Condition endorsed on his licence card. He was also advised that he must notify the Firearms Registry and Police of his new safe storage address as per clause 17 of the Regulation. The Notice indicated that police must also conduct a safe storage inspection at his new safe storage location. The letter also included a “Note” that police must be satisfied that the Applicant had complied with the Special Condition prior to his firearms being returned.

Contact with Police Assistance Line – 15 June 2021

34. The Respondent relied on a series of records in relation to the Applicant’s calls to the Police Assistance Line. The Applicant is recorded as having telephoned the Police Assistance Line on 15 June 2021, to follow up on the reinstatement of his licence and was advised that a letter had been sent the previous week with regard to his new licence and special condition.

July 2021 Incident

35. NSW Police Force COPS Event Ref No: E 81955342 (July 2021 COPS Event) records that on 6 July 2021, police attended the Applicant’s residence in relation to a call. It was recorded that the Applicant had been looking after Michelle for some five years, and that she resided in a granny flat at the rear of the Applicant’s residence. It was recorded that the two exchanged “sex for money and smokes on a regular basis”. Prior to police attending, it was recorded that Michelle had started shouting at the Applicant, asking for money and then started to bang at the door of the Applicant’s residence, before tearing the screen and trying to unlock it. The front door was closed, and she started kicking and banging the door, threatening to kill the Applicant. The Applicant then went outside, asking for an ambulance to be called for Michelle, and a third person got in between Michelle and the Applicant in an attempt to stop the Applicant being assaulted.

36. Police attended the Applicant’s residence and Michelle was arrested for an intimidation and malicious damage offence and an AVO was issued against Michelle for the protection of the Applicant.

Contact with Police Assistance Line – August 2021 to January 2022

37. On 17 August 2021, the Applicant is recorded as having contacted the Police Assistance Line in relation to his “PA”. It is assumed that this is a reference to his Photographic Advice.

38. On 10 November 2021, the Applicant is recorded as having contacted the Police Assistance Line. The call details are recorded to include the following:

Firearms seized special conditions but they are no longer relevant as person mentioned is no longer at residence and current AVO in place to prevent person from being at residence. LH would like to know the process for removal of special conditions so that guns can be returned.

39. A further call from the Applicant to the Police Assistance Line is recorded as having been made on 19 November 2021 in relation to the Applicant’s “photo advice”.

40. On 18 January 2022, there was a further call from the Applicant to the Police Assistance Line and the call details indicate as follows:

Special conditions reviewed

Customer has received PA and wondering why he needs to action if he already has licence.

41. The call details then indicate “advised as per” with reference being made to the case number of the Applicant’s call to the Registry on 10 November 2021. The call details then stated that a “PA” had previously been issued for special conditions but was not actioned. It was stated “Advised this PA issued so special conditions will be stated on licence and as per [Case reference for call made on 10 November 2021] email sent to advise how to submit review for special conditions.”

Return of Applicant’s firearms

42. NSW Police Force COPS Event Ref No: E 342628394 (COPS Event) refers to the 2020 Incident and the seizure of the Applicant’s firearms on 17 October 2020. The COPS Event was updated on 8 June 2021 indicating that the suspension of the Applicant’s licence had been lifted with special conditions and stated that “risk based safe storage inspection required due to suspension lift”. There was a note stating that the Applicant must notify the police and the Firearms Registry of the new safe storage location and organise a police safe storage inspection prior to return of any firearms. Further information and steps for “Inspection Completion” were included in the COPS Event.

43. The COPS Event was again updated at St Marys Police Station on 2 June 2022, where it was recorded that on Thursday 2 May 2022, the Applicant presented to retrieve his five firearms and that a report was written and forwarded through the appropriate chain of command. It was recorded that the firearms and ammunition were handed back to the Applicant and signed for. The COPS Event was again updated on 3 June 2022 to note that it was requested that firearms not be returned to the Applicant until an inspection was conducted for the new safe storage address, as required by the Special Condition on his licence. It was also recorded that, whilst the need for an alternate safe storage location may no longer be necessary, the Special Condition requiring this remained on the Applicant’s licence. The COPS Event went on to state:

As per notes on RMS file, [the Applicant] was advised of the process to remove the Special Conditions that require the storage of firearms at another location. To date, no request has been made. Hence, the Special Condition on his licence remains in force.

44. Police were then requested to seize the firearms “pending either a new safe storage address being provided, and inspected, or [the Applicant] provides a written request as instructed, to remove the Special Condition from his licence and the reason why, and can produce his re-issued licence without Special Conditions to Police prior to the return of his firearms.”

Further contact with the Special Assistance Line – October 2022

45. It is recorded that the Applicant called the Firearms Registry on 7 October 2022 requesting “duplicated firearms registration papers”.

Revocation of firearms

46. On 17 November 2022, the Firearms Registry sent the Applicant a Notice of Revocation (Notice of Revocation) advising the Applicant that a decision had been made to revoke his licence and that he must surrender his licence card and all firearms to police upon service of the Notice. The Notice indicated that information was held by the Firearms Registry that the Applicant was in possession of his firearms at the Applicant’s residence, in contravention of the Special Condition.

47. NSW Police Force COPS Event Ref No: E 91950552 records that on 29 November 2022, the Applicant attended St Marys Police Station and surrendered his licence and firearms to police.

Applicant’s case

48. It was the Respondent’s position that when the Applicant’s firearms were returned to him, the Applicant had not requested that the Special Condition be removed and that he did not provide, or have inspected, a new safe storage address. As a result, the Respondent submitted that the Applicant breached the Special Condition on his licence and also contravened clause 17 of the Regulation.

49. In the Applicant’s written submissions, it is noted that the Respondent submitted that the Applicant was in possession of his firearms for a period of time and asks the Tribunal to infer that during this time, the Applicant was in possession of them at his residence. The Applicant submitted that there is no evidence before the Tribunal to show that this is the case, other than that the Firearms Registry held “information” that the Applicant had been doing so, and that there is no statement or other evidence to show the source of this “information”. It was submitted by the Applicant that he paid for storage at the Sydney International Shooting Centre (SI Shooting Centre) from February 2022 and this is supported by a tax invoice for payment. It was further submitted that it was the Applicant’s evidence that when he collected his firearms, he told the police at St Marys Police Station of his storage address at Cecil Park and attempted to contact the Police Assistance Line on a number of occasions regarding this issue.

50. In his request for an internal review on 14 December 2022 (part exhibit R1), the Applicant stated that his firearms were returned to him “around September 2022 on condition that they were stored at Cecil Park Rifle Range”. He went on to say that a record of the storage location was made by police at St Marys Police Station. The Applicant said that they instructed him to update his online record but that he was not successful. He stated that the storage location was a few miles from his house and that police would need to attend his residence first to get the keys. He stated that at all relevant times, the firearms were stored either at St Marys Police Station or at the Cecil Park Range and that there had been no firearms at his residence for two years.

51. The Applicant relied on his statement dated 2 July 2023. He stated that his relationship with Michelle ended on 6 July 2021 and that she no longer lived in his granny flat and that he has no contact with her. He stated that his firearms were returned to him on 2 June 2022 and that he had them until he handed them to police on 29 November 2022. He acknowledged that he wrote in his internal review submissions that he got the guns back around September 2022 but stated that this was an error on his part.

52. The Applicant stated that his storage location was at the Cecil Park Range from 2 June 2022 and that they were taken out for cleaning and for his compulsory shoots and that this was done at the St Marys Range. The Applicant stated that he did not have a record of the times that his guns were out of the locker, and that the Cecil Park Range did not seem to have a record either. He stated that he did not store his firearms at his residence once the Special Condition had been placed on his licence and that they were always stored at Cecil Park. He stated that he informed the police at St Marys Police Station of the storage location when he took the firearms and that he had extreme difficulty in trying to update the address with the Firearms Registry because of their online system.

Consideration

53. I accept that the suspension of the Applicant’s licence was lifted on 8 June 2021 and the Applicant was notified of this by the Notice of Special Condition. I accept that this Notice advised the Applicant that the Special Condition had been imposed on his licence, and advised him of the process that was required to be followed in relation to the return of his firearms.

54. The COPS Event indicates that the firearms were returned to the Applicant on Thursday 2 May 2022. In his internal review request, the Applicant indicated that the firearms were returned to him in September 2022 but in his statement, he said that this was an error on his part and that the firearms were returned to him on 2 June 2022. The Respondent submitted that the date of 2 May 2022 in the COPS Event was also an error and that the correct date for the return of the Applicant’s firearms was 2 June 2022. I take note that 2 May 2022 was a Monday, and that 2 June 2022 was a Thursday, and accept the joint position of the parties that the Applicant’s firearms were in fact returned to him on 2 June 2022 and that the references to 2 May 2022 and to September 2022 were errors. It was not disputed that the Applicant surrendered his firearms to police on 29 November 2022 and I accept this to be the case.

55. I accept that the Applicant’s licence was subject to the Special Condition between 2 June 2022 and 29 November 2022. The Notice of Special Condition made it clear that prior to having his firearms returned, the Applicant would need to have a new photo licence issued with the Special Condition endorsed on his licence. The Applicant was advised in that Notice that he must notify both the Firearms Registry and the police of his new safe storage address in accordance with clause 17 of the Regulation, and additionally that police must conduct a safe storage inspection at his new safe storage address. These requirements were also recorded in the COPS Event.

56. The Applicant did not dispute that he made contact with the Police Assistance Line on 10 November 2021 or enquired about the process to have the Special Condition removed. He did not dispute that he contacted them again on 18 January 2022, where the call record indicates that it was confirmed that the Special Condition would be stated on his licence and where reference was made to an email sent to him in response to his call on 10 November 2021 to advise him how to submit a review in relation to the Special Condition. The Applicant was clearly aware of the existence of the Special Condition. There is no evidence that the Applicant sought a review of the Special Condition at any time, and I find that he did not do so.

57. Having regard to the evidence before the Tribunal, I am satisfied that as of 2 June 2022, the Applicant had not provided written notice to the Respondent of any change to his recorded safe storage address, namely the Applicant’s residence, and that no inspection of any new safe storage address had been conducted by police. It would appear that the officers at St Marys who returned the firearms to the Applicant, failed to comply with the requirements set out in the Notice of Special Condition for the return of the firearms, and this appears to be acknowledged in the notation in the COPS Event dated 3 June 2022. Reference is made in that notation for a request for police to seize the Applicant’s firearms. A Notice of Revocation was subsequently issued to the Applicant on 17 November 2022.

58. It is an underlying principle of the Act that the possession and use of firearms is a privilege that is conditional on the overriding need to ensure public safety. I am satisfied that at all times it remained the responsibility of the Applicant to ensure that he complied with the Special Condition and the firearms legislation.

59. I accept the Applicant’s evidence that he commenced paying for safe storage at the SI Shooting Centre in February 2022, although it appears from the Tax Invoices provided that from February 2022 to June 2022, the storage was for three firearms, rather than five. No explanation for this was provided by the Applicant. I accept however, that the Tax Invoice dated 31 October 2022 refers to storage for five firearms. The Applicant did not provide any explanation as to why he had not advised the Firearms Registry that the intended safe storage address for his firearms was the SI Shooting Centre, or requested an inspection of that storage, prior to attending St Marys Police Station on 2 June 2022.

60. The Respondent’s submissions refer to the Applicant’s reference in his evidence to the Cecil Park Rifle Range and the Cecil Park Range and that for the purpose of the submissions, it was assumed that these references referred to the storage and use of firearms at the SI Shooting Centre, given that SI Shooting Centre is located next to Cecil Park Clay Target Club. Whilst no evidence on this issue was given by the Applicant, or submissions made by the Applicant’s legal representative, I also assume that the Applicant’s references to Cecil Park Rifle Range and Cecil Park Range were intended to be a reference to the SI Shooting Centre, given this is facility referred to in the Tax Invoices that he provided to the Respondent.

61. The Applicant gave evidence that when he attended to pick up his firearms, the police at St Marys Police Station pointed out the Special Condition on his licence to him and asked him where he was going to store his firearms. The Applicant’s evidence was that he told the police of the storage location at this time and in cross-examination, he said that police wrote it down but did not make a notation on the computer. There was no direct evidence before the Tribunal from the officers who dealt with the Applicant at St Marys Police Station on 2 June 2022. Whilst I accept that certain steps were not followed by those officers in relation to the return of the firearms to the Applicant, having regard to the Applicant’s evidence, I find that it is highly probable that the officers did ask the Applicant where he would be storing the firearms. I also find that, given that the Applicant had already paid for some storage at the SI Shooting Centre prior to 2 June 2022, and given his various references in his evidence to the Cecil Park Range, that he told the officers that the firearms would be stored at the Cecil Park Range.

62. On this basis, I am satisfied that the Applicant told the police at St Marys Police Station on 2 June 2022 that he would be storing his firearms at the Cecil Park Range. It is evident however that the storage that the Applicant had paid for at this time was at the SI Shooting Centre.

Applicant’s compliance with Clause 17 of the Regulation

63. In any event, it is clear from the Notice of Special Condition that the Applicant was required to notify both the police and the Firearms Registry of his new safe storage address (bold added), and that specific reference was made in the Notice of Special Condition to clause 17 of the Regulation. Clause 17(3) of the Regulation provides that if there is any change in the address of the premises on which a licence holder keeps any firearms, the licence holder must, within 14 days after the changes occurs, give the Commissioner notice in writing or in such other manner as may be approved –

1. Specifying the address of the new premises on which the firearm is to be kept when not actually being used, and

2. Specifying particulars of the arrangements that have been made by the licence holder for the safe keeping and storage of the firearms on those premises, and

3. Certifying that those arrangements comply with the requirements of the Act and the Regulation concerning the safe keeping and storage of the firearm.

64. It is clear that the Applicant’s response to the police at St Marys Police Station on 2 June 2022 did not constitute a notification pursuant to clause 17(3) of the Regulation, and would not have done so, even if he had specifically referred to the SI Shooting Centre, rather than the Cecil Park Range. This appears to have been acknowledged by the Applicant in his internal review request where he states that the police “instructed” him to update the online record and that he had difficulty in in doing so because of Firearm Registry’s on line system. Whilst he made reference to having called the support line several times and referred to delays and difficulties getting through to them, the Applicant conceded in cross-examination that he could have tried harder to alter the online record and that he wished he had done more.

65. The Respondent relied on the records of six telephone calls made by the Applicant to the Police Assistance line between 15 June 2021 and 7 October 2022 that I have referred to above. These records set out the various matters on which the Applicant sought assistance on each occasion. There is no reference in the records of these six calls that the Applicant sought assistance at any time in relation to updating his safe storage address. In my view, these records are at odds with the Applicant’s evidence that he had difficulties getting through to the support line, and I do not accept the Applicant’s evidence on this issue.

64. I find that the Applicant had six opportunities to speak to the Police Assistance Line between 15 June 2021 and 7 October 2022, with five of the calls taking place prior to the return of his firearms on 2 June 2022 and one call, some four months afterwards. This allowed him six opportunities to discuss the issue of his safe storage address with the Police Assistance Line. He also had the opportunity, in the call of 7 October 2022, to raise any issues that he encountered in updating the online record or making contact with the Police Assistance Line, and yet there is no record that he did so. No evidence was adduced by the Applicant of any other form of notification made by him to the Firearms Registry about any change to his safe storage address and in all of the circumstances, I am satisfied that he did not make such a notification and that his safe storage address remained as the Applicant’s residence at all relevant times from 2010.

65. It is also clear that clause 17(3) of the Regulation requires more than just an alteration of the online record as referred to by the Applicant, and there is no evidence that the Applicant gave the Commissioner notice specifying those matters required by clause 17(3) of the Regulation, including that he certified that his safe storage arrangements complied with the requirements of the Act and Regulation concerning the safe keeping and storage of the firearms. Accordingly, I am satisfied that the Application did not comply with the provisions of clause 17(3) of the Regulation.

Storage of firearms between 2 June 2022 and 29 November 2022

68. The Applicant gave evidence that after picking up his firearms, he took them to the Cecil Park Range, and as referred to previously, I accept that his reference to the Cecil Park Range was likely to have been intended as a reference to the SI Shooting Centre. The Respondent relied on five images referring to the Applicant and five firearms, together with an Admission Report from the NSW Office of Sport indicating the following Admission Types at the SI Shooting Centre:

1. On 10 February at 3.50 pm, the Admission type is stated as “SISC>Armory”;

2. On 2 June 2022 at 11.30 am, the Admission type is stated as “SISC>10m>Range Officer”;

3. On 21 October 2022 at 10.53 am, the Admission type is stated as “SISC>Armory”; and

4. On 29 November 2022 at 11.20 am, the Admission type is stated as “SISC>Armory”.

69. An email from an officer of the SI Shooting Centre and Southern Highlands Regional Shooting Complex dated 8 May 2023 confirmed that the Applicant had a safe for the storage of five long arms and noted that the records indicated that the firearms were last checked into storage on 21 October 2022 and checked out on 29 November 2022. A physical check indicated, presumably as of the date of the email, that the safe was unlocked with no firearms in it. The officer advised that the admission report shows the Applicant’s last day of attendance at the Centre was 29 November 2022, when the firearms were last checked out of storage. In response to a question from the Firearms Registry, the officer later advised that the 2 June 2022 attendance by the Applicant related to a “range attendance – 10 metre”.

Consideration of storage of firearms from 2 June 2022 to 21 October 2022

70. The Applicant did not adduce any records relating to either the SI Shooting Centre or the St Marys Shooting Range, other than the Tax Invoices for payment of storage that have previously been referred to. When asked in cross-examination about why he had made an error about the date that he collected his firearms from police, the Applicant said that he could not recall unless it was written in his diary, and this date was not written in his diary. He said that he later checked an email to his Club Captain to find the correct date. This email was not before the Tribunal. The Applicant also stated that whilst he took his firearms to the St Marys Range for compulsory shoots and cleaning, he was unable to provide any records relating to the movement of his firearms between the Cecil Park Range and St Marys Shooting Range.

71. In his evidence, he denied the stated range attendance on 2 June 2022 at the SI Shooting Centre. He said that he could not have done this, as on 2 June 2022, he had gone to the Armory on a number of occasions because the car park was a long way away from the Armory and he could only carry one firearm at a time. He acknowledged that there was no indication in the records that he had attended the Armory on that date.

72. In relation to the date of 10 February 2022, the date that the Applicant had arranged storage at the SI Shooting Centre, the Applicant gave evidence that this date was significant because this was when he was told that he needed to have storage that was not at his house. He stated that he then went to Cecil Park, filled in the rental and got the key for the safe. He said that he thought he would get his firearms back soon but that it had taken a while. The Applicant stated that he checked the firearms out on 29 November 2022 in order to hand them in to police.

73. I accept that the Applicant attended the SI Shooting Centre on 10 February 2022 and arranged for storage there for at least some firearms from 11 February 2022 to 10 February 2023. Given that the Notice of Special Condition was sent to the Applicant on 8 June 2021, and clearly set out that the Special Condition meant that the Applicant could not store firearms at the Applicant’s residence, it is not clear why the Applicant stated that he was told on 10 February 2022 that he needed storage elsewhere. In any event, the Applicant’s attendance at SI Shooting Centre on this date to arrange storage is consistent with the Admission Report. Whilst the Admission Type on that report is referred to as “Armory”, it is evident that on this date, the Applicant did not have his firearms in his possession and that they remained at St Marys Police Station.

74. I accept that the Applicant made payments for storage in February, June and November 2022. There is an entry in the Admission Report to the Applicant attending the SI Shooting Centre on 2 June 2022 at 11.30 am, just under an hour after his firearms had been returned to him at St Marys Police Station. Having regard to the Admission Report and the Applicant’s evidence, I accept that the Applicant attended the SI International Shooting Centre on 2 June 2022. However, I also give consideration to the Applicant’s evidence that he cannot recall dates unless they are written in his diary, and that the collection of his firearms from St Marys Police Station on 2 June 2022 was not so recorded. I also have regard to the Applicant’s failure to adduce any documentary evidence, such as a diary entry, in relation to putting his firearms into storage on 2 June 2022. I also have regard to the Applicant’s references to the Cecil Park Range and Cecil Park, rather than to the precise location where he had paid for storage for his firearms, namely the SI Shooting Centre.

75. In the circumstances, I prefer the documentary evidence adduced by the Respondent in relation to the SI Shooting Centre. I find that the Applicant attended the SI Shooting Centre on 2 June 2022 in relation to a range attendance “10 metre” and that the Admission Report for that date makes no reference to the Armory or any other attendance type by the Applicant on that day. Accordingly, I am not satisfied to the requisite standard that the Applicant has established that he put his five firearms into storage at the SI Shooting Centre on 2 June 2022.

76. Whilst I accept that the Applicant paid storage fees for the relevant period, this does not mean that the firearms were necessarily in storage at those premises, and this was clearly the case between 10 February 2022 and 1 June 2022, as the firearms were in the custody at St Marys Police Station during this time.

77. There is no reference in the material before the Tribunal from the SI Shooting Centre of the Applicant attending those premises in the period between 2 June 2022 and 21 October 2022, or to support the Applicant’s contention that his firearms were stored there during that period. Whilst the Applicant’s evidence is that he moved the firearms between the Cecil Park Range and the St Marys Shooting Range, no documentary evidence has been adduced to establish the whereabout of his firearms at any time after 2 June 2022 and before 21 October 2022. Accordingly, I am not satisfied to the requisite standard that the Applicant’s firearms were in storage at the SI Shooting Centre during this period.

Consideration of storage of firearms from 21 October 2022 to 29 November 2022

78. Having regard to the documentary evidence adduced by the Respondent relating to the SI Shooting Centre, and in particular the five images referring to the movement of the Applicant’s five firearms, I am satisfied that the Applicant’s firearms were checked into storage at the SI Shooting Centre on 21 October 2022 and that they were not checked out again until 29 November 2022, the same date that the Applicant surrendered them to police. Accordingly, I find that the Applicant’s firearms were stored at the SI Shooting Centre between 21 October 2022 to 29 November 2022.

Did the Applicant breach the Special Condition in the period 2 June 2022 to 21 October 2022

79. I have already found that the Applicant did not comply with the provisions of clause 17(3) of the Regulation and that I am not satisfied that his firearms were stored at the SI Shooting Range during the period 2 June 2022 to 21 October 2022. The next issue to be determined is whether the Applicant was in breach of the Special Condition during this period.

80. I accept the submissions made on behalf of the Applicant that whilst reference was made in the Notice of Revocation to “information” held by the Respondent that reveals the Applicant was in possession of his firearms at the Applicant’s residence, no evidence of this information was before the Tribunal. Whilst there is a lack of documentary evidence to establish where the Applicant’s firearms were stored between 2 June 2022 and 21 October 2022, no evidence has been adduced that positively establishes that the Applicant’s firearms were stored at the Applicant’s residence during this period.

81. In my view, the Applicant’s failure to comply with the provisions of clause 17(3) of the Regulation; his failure to adduce documentation establishing the location of his firearms between 2 June 2022 and 21 October 2022; coupled with his advice to the Police Assistance Line that the Special Condition was no longer relevant, gives rise to a strong suspicion that the Applicant kept his firearms at the Applicant’s residence during this period. The Applicant’s call to the Police Assistance Line on 7 October 2022 seeking duplicated firearms registration papers, just a few weeks before his firearms were placed into storage at the SI Shooting Centre, would also seem to support this. However, in the absence of any evidence to establish where the firearms were in fact stored, I am not satisfied to the relevant standard that the Applicant stored the firearms at the Applicant’s residence during this period, or that he breached the Special Condition on his licence.

82. I accept the Respondent’s submission that irrespective of whether an applicant has been formally charged with an offence, the Tribunal is able to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62]-[64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30]. Given my finding above, I am satisfied that the Applicant’s conduct establishes that he as contravened the provisions of s 24(2)(b)(ii) of the Act and as a consequence, that his licence may be revoked.

83. The Respondent’s revocation power, and by derivation that of this Tribunal, is a discretionary one. In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43, [37] the Administrative Decisions Tribunal Appeal Panel noted as follows:

No guidance is given in [s 24(2)(b)(ii)] as to what factors might be relevant [to the exercise of the discretion]. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations.

84. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 (Uzelac), at [19], Hennessy DP set out the principles applying to licence revocations, particularly involving safe storage breaches, in a passage that has been widely approved and followed:

19 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted:

· while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]);

· the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include:

· the reason for failing to store the firearm safely;

· the length of time the firearm was not stored safely;

· the potential or real danger posed by failure to store the firearm safely;

· the person's previous conduct in relation to storage of firearms and any related matter;

· the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and

· the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25])

· in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50)

· the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37]).

85. The Applicant’s contravention of clause 17(3) of the Regulation has meant that the Applicant’s residence has remained as the Applicant’s safe storage address since 24 October 2010, notably including the period that the Applicant was in possession of his firearms and the Special Condition on his licence prohibited him from possessing or storing firearms at the Applicant’s residence. I accept the Respondent’s contention that the requirement under clause 17 of the Regulation to notify the Respondent of a safe storage address has practical effect, and enables police to complete safe storage checks, monitor the movement of firearms, and also to track any firearms should they be stolen. The Notice of Special Condition sent to the Applicant expressly referred to the Applicant’s obligations under clause 17 of the Regulation and that an inspection of his new safe storage location was required prior to the return of his firearms.

86. Having regard to the evidence in this matter, and in particular the Applicant’s acknowledgment in his evidence that he knew as of at least 10 February 2022, that he could not store his firearms at the Applicant’s residence, the Applicant was clearly aware that the Special Condition on his licence continued to be in force. He was also aware of his obligations to comply with clause 17 of the Regulation and the requirement to have his new safe storage location inspected by police, and yet failed to do so, either before the return of his firearms or at any time afterwards.

87. The Applicant’s failure to comply with clause 17(3) of the Regulation means that it is not possible to ascertain with certainty where the Applicant stored his firearms between 2 June 2022 and 21 October 2022, or whether the storage complied with the relevant legislative requirements. Accordingly, I am satisfied that the Applicant’s contravention of clause 17 of the Regulation was not trivial or excusable and posed a significant risk to public safety. In the circumstances, it is appropriate that the Tribunal exercise the discretion in s 24(2)(b)(ii) of the Act and that the Applicant’s licence be revoked.

Public Interest

88. The phrase “public interest” is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

89. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor(No 2) (1995) 131 ALR 657, 681, the High Court said:

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

90. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.

91. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].

90. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. “The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests” at [8].

91. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

Consideration

94. The Respondent submitted that it would be contrary to the public interest for the Applicant to hold a firearms licence for a number of reasons, including that the Applicant has not been honest with police in relation to various matters, including in relation to his history with Michelle. Mr Mainstone, the solicitor acting on behalf of the Applicant, referred in oral submissions to the Applicant’s evidence that he regarded his relationship with Michelle as private and personal. Mr Mainstone also submitted that this was not a Tribunal of morals.

95. I accept that the Applicant has no criminal history and the offence for which he was charged following the 2020 Incident was subsequently dismissed by the Local Court and he was found not guilty. However, it was not disputed by the Applicant that police had been called to attend in relation to the 2014 Incidents, the 2015 Incident, the 2016 Incident, the 2020 Incident, the March 2021 Incident and the July 2021 Incident, all of which involved the Applicant and Michelle. I accept that in all of these matters, the Applicant could well be described as the victim, including in relation to the 2020 Incident. In the absence of any evidence to the contrary, I accept that the Applicant has not seen Michelle since the July 2021 Incident and that their relationship has ended.

96. However, whilst the Applicant stated that “All problematic issues I had during my life came as a result of my relationship with [Michelle] and this is why I have ended that relationship and no longer have any contact with her”, it is clear that the Applicant’s failure to comply with the provisions of clause 17(3) of the Regulation, covered the period between, at least, 22 June 2022 and 29 November 2022, which followed the end of his relationship with Michelle. The Applicant also denied certain matters contained in the various COPS Events, including smoking or using drugs with Michelle. He also said that whilst he had sex with Michelle on occasion, he did not give her money specifically for that. The Applicant stated that he believed that he was in a “relationship of sorts” with Michelle at the time, and later said that this meant that he thought that they were good friends and that he had a “duty” to look after Michelle. He conceded in cross examination that he had not been frank and honest with police about his relationship with Michelle.

97. In the Applicant’s internal review request dated 14 December 2022 (part exhibit R1), the Applicant stated that the 2020 Incident as described in the Reasons for Decision did not happen. In part, the Applicant said in the internal review request that on 17 October 2020 he was attacked in Mascot by a man he had never met and that the man was high on crystal meth and had been going around attacking people without sleep, for several days. The Applicant makes no mention to Michelle in his internal review application relating to the 2020 Incident.

98. Reference is made in the Notice of Revocation to the 2020 Incident, under the heading “The Reasons for my decision are as follows:” and it is clear that the Notice of Revocation is the document being referred to by the Applicant in his internal review request. The Notice of Revocation makes reference to the Applicant’s firearms licence having been suspended on 17 October 2020 due to a domestic incident with a person who resides with him and that he was made subject to a Provisional Apprehended Violence Order and his firearms seized.

99. Whilst I accept that the reference to the 2020 Incident in the Notice of Revocation was not detailed, it is clear from the Applicant’s statements in the record of interview conducted by police on 16 October 2020 (Record of Interview), that the Applicant was fully aware that the 2020 Incident involved two other people known to the Applicant, namely Michelle and Brendan. The Applicant told police at that time that he knew that Michelle and Brendan had been in a relationship and had “split up in July” and that he had met Brendan a few weeks earlier.

100. The transcript of the Record of Interview indicates that the Applicant had been cautioned by police prior to the interview and that the interview was electronically recorded and took place on 16 October 2020. This is the same day as the 2020 Incident and at a time when the events were fresh in the Applicant’s mind. On this basis, I give great weight to the Applicant’s responses in the Record of Interview. It is evident that the statements made by the Applicant in his internal review request differ to his answers in the record of interview and where they differ, I prefer the Applicant’s responses as set out in the transcript of the Record of Interview. On this basis, I am satisfied that the Applicant knew that Michelle was involved in the 2020 Incident, that the other male involved in the incident was Brendan and that the Applicant knew that Brendan had been in a relationship with Michelle and that the Applicant had met Brendan on a previous occasion.

101. In the internal review request, the Applicant makes reference to the July 2021 Incident and suggests that the Applicant was only helping Michelle as the result of his friendship with her mother, who had died in August 2020. In my view, this account is inconsistent with him telling police in the Record of Interview that he had known Michelle for around seven years, been giving her money and had paid for her hotel. I also find it inconsistent with his statement in the Record of Interview, that in terms of his relationship with Michell, “you’d probably call it friends with benefits”. It is also inconsistent with the information recorded by police in the 2014 Cops Event that as of 6 March 2014, the Applicant and Michelle had been in an intimate personal relationship in which Michelle provided sexual services to the Applicant in exchange for her living in his apartment. It is also inconsistent with the information contained in the 2015 Cops Event in which the Applicant is recorded as having advised police that he had allowed Michelle to stay overnight in a self-contained detached garage at the Applicant’s residence and where he admitted that he had previous sexual relations with Michelle, as well as paying for hotels.

102. The Tribunal in DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD said at [57], that “[t]he level of co-operation and frankness demonstrated by a licensee in dealing with the regulator is indicative of the licensee’s character” and at [58], “[a] licensee has an obligation to act in a manner that demonstrates candour and frankness in his or her dealings with the regulator”. I agree with these comments and find that the various COPS Event reports establish that the Applicant has not been candid with police about his relationship with Michelle. I am also satisfied that the information provided by the Applicant in his internal review request was not complete and contained a number of untruthful statements, including that the Applicant had never met the man who attacked him in Mascot. In these circumstances, I am satisfied that the Applicant was not frank and candid in his dealings with the Firearms Registry. This suggests that there is cause to be concerned as to whether the Applicant is likely to demonstrate those characteristics in any future dealings with the regulator, namely the Respondent in these proceedings.

Conclusion

103. As a result of this finding, coupled with those previously made by me in relation to the Applicant’s contravention of clause 17(3) of the Regulation, I am not satisfied that there is virtually no risk if the Applicant was to hold a firearms licence and possess firearms. Having regard to the principles and objects of the Act, I am satisfied that the issue of the licence to the Applicant would be contrary to the public interest.

104. Accordingly, in light of the above, the correct and preferable decision is to affirm the Respondent’s decision to revoke the Applicant’s licence.

Order

105. The decision under review 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

Amendments

09 July 2024 - 9 July 2024 – Paragraphs 87 and 88 corrected. Paragraph numbering error and changed ‘s 22(4)(2)(b)(ii)’ to ‘s 24(2)(b)(ii)’.

Paragraph 78 corrected. Changed ‘20 November 2022’ to ‘29 November 2022’.

Decision last updated: 09 July 2024