Salafia v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Salafia v Commissioner of Police, NSW Police Force [2025] NSWCATAD 129

Hearing dates:

26 May 2025

Date of orders:

04 June 2025

Decision date:

04 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

The administratively reviewable decision of the Respondent under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - merits review

LICENCING - firearms - licence - public interest - expert evidence - ballistics

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulations 2017 (NSW)

Cases Cited:

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25

Meacham v Commissioner of Police [2020] NSWCATAP 107

Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Anthony Salafia (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:

Hartmann & Associates Solicitors (Applicant)

Bartier Perry Lawyers (Respondent)

File Number(s):

2024/00263076

Publication restriction:

None

REASONS FOR DECISION

1. This is an application for review of a decision of the Commissioner of Police, NSW Police Force, the respondent in these proceedings (“Respondent”) to revoke a firearms licence that had been held by the applicant, Anthony Salafia (“Applicant”). The Applicant contests that revocation.

Background

2. On 11 December 2022, a member of the public was flying kites with his son at Wagga Wagga.

3. At 2:00 PM, the evidence was that the father heard a “bang”. He looked down and saw a wound to his right calf.

4. He could not see anyone with firearms within the vicinity, that the victim or any other witness was able to identify.

5. The victim attended hospital and was treated for a gunshot wound. An impacted bullet was retrieved from his calf during surgery and collected by NSW Police.

6. The bullet collected by NSW Police was identified as being from a .22 calibre rifle.

7. On a search by NSW Police of properties adjacent to the site of the shooting, they identified that the Applicant whose property was in close proximity, held a firearms licence and stored multiple .22 calibre rifles. The evidence of the Respondent was that the Applicant was the only firearms licence holder on the surrounding properties who stored.22 calibre rifles.

8. On 14 December 2022, Detective Sergeant McDougall of the NSW Police attended the Applicant’s premises and gave him a direction to produce all .22 calibre rifles he had. He produced three. The firearms were then seized and conveyed to NSW Police Ballistics.

9. Detective Sergeant McDougall also said that the NSW Police wanted to do a safe storage inspection of the Applicant’s premises. The Applicant however would not allow this to occur until 20 December 2022.

10. The NSW Police identified a firearm that they said fired the impact damaged bullet in question. That firearm was owned by the Applicant's son but stored at the Applicant’s property.

11. The Applicant said during his interview with NSW Police that he often shot at rabbits when he was working during the week at his shed. The distance between the Applicant’s shed and the location of the shooting on 11 December 2022 was about 784 metres. There was a small hill to the maximum height of 250 metres between the two locations.

12. Detective Sergeant McDougall said that if the Applicant had been at his shed or even close to the boundary and shooting up the hill at rabbits or other vermin with the rifle aimed upwards, the bullet would have easily cleared the hill and got to the site of the shooting.

13. The Applicant said that on 11 December 2022, he had been at home on his property with his wife from 10:30 AM to 4:30 PM that day. When interviewed by the NSW Police, he said that he “didn’t recall” or “couldn't remember” what he had done, including whether he had been shooting on his property.

14. The Applicant denied firing the impact damaged bullet removed from the victim’s calf and said it was fired from a firearm that was not his.

15. The Applicant’s son said that the last time he shot firearms was around a year prior to the time he was interviewed, namely 11 September 2023. He also said that he had not attended his father's property on 11 December 2022. The Applicant’s son said he had no knowledge of the incident on 11 December 2022.

16. The Applicant stated to the NSW Police that his son and he were the only people who had access to the Applicant’s firearms safe and knew where the keys were. There was no evidence of any other person having access to the Applicant’s firearms safe at the relevant times.

17. The Respondent on 14 June 2024 revoked the Applicant’s Category AB firearms licence on the grounds that it was not in the public interest that he have the privilege of a firearms licence.

18. On 17 July 2024, the Applicant filed an application for administrative review by the Civil and Administrative Tribunal (“Tribunal”) of the Respondent’s decision to revoke his firearms licence. This is the application for review before the Tribunal in these proceedings.

Applicant’s rights of review

19. Under s 75(1)(c) of the Firearms Act 1996 (NSW) (“Firearms Act”), a person may relevantly apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) of a decision for the revocation of a licence or permit issued to the person. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), allows jurisdiction to the Tribunal to exercise functions as are conferred or imposed on the Tribunal under the ADR Act.

20. It was not in dispute that the Tribunal has jurisdiction for administrative review of the decision of the Respondent in this matter, in circumstances where the Respondent had revoked the Applicant’s licence under the Firearms Act.

21. The Tribunal’s powers on review are set out in s 63 of the ADR Act as follows:

“(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal”.

Consideration

22. Section 3 sets out the underlying principles of the Firearms Act in the following terms.

“Principles and objects of Act

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

23. The paramount principle derived from s 3 is ensuring public safety (Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, at [24]). This is the “overriding need” that must be given effect under the legislation.

24. Matters of fact relevant to determination of the question must be proved under the required standard of proof. This is the balance of probabilities. However, there is no onus of proof. The Applicant, in particular, does not bear the onus of proof (Meacham v Commissioner of Police [2020] NSWCATAP 107, [75] and [81]-[82]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10, at [34]).

25. Section 24(2) 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

……

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

26. Clause 20 of the Firearms Regulations 2017 (NSW) (“Regulations”) provide that:

“20   Revocation of licence—licence not in the public interest

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”.

27. The Respondent’s submission is that it is not in the public interest for the Applicant to hold a firearms licence. What is the “public interest” is not defined in the Firearms Act. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [24] – [25], the Appeal Panel of the Administrative Decisions Tribunal said:

"... public interest is a term embracing matters against others, of standards of human conduct and of the functioning of government and government instrumentalities et cetera established and accepted to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct to the interest of the individual or individuals.

…..

The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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... ".

28. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16, the Administrative Decisions Tribunal said, at [33]:

“The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol”.

29. Both parties provided expert evidence addressing the question of whether the bullet that struck the victim on 11 December 2022 was, in the opinion of the experts giving evidence, fired from a rifle in the possession of the Applicant.

30. If it is found that the bullet fired on 11 December 2022 came from such a rifle based on the expert and other evidence, the further question is whether the firing constitutes grounds for the revocation of the Applicant’s firearms licence under the provisions set out above.

Evidence of the events of 11 December 2022

31. The matter of fact to be determined in these proceedings is whether or not the bullet causing injury to a member of the public on 11 December 2022, was fired from a .22 calibre rifle in the possession of the Applicant.

32. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 38(2) of the NCAT Act).

33. Evidence of the events surrounding the shooting was provided in written statements by the Applicant and Detective Sergeant McDougall. Detective Sergeant McDougall was stationed at Wagga Wagga Police Station in December 2022.

34. The Applicant did not give oral evidence at the hearing. Detective Sergeant McDougall gave oral evidence at the hearing using remote means.

35. The Applicant in his written statement in evidence dated 5 November 2024, denied undertaking any shooting on 11 December 2022 at his property.

36. The Applicant produced evidence that .22 calibre rifles were widely used and that a local firearms dealer had sold over 90 through his business.

Expert evidence

37. The expert evidence before the Tribunal comprised the following:

1. “Expert Certificate” of Andrew Cole dated 27 June 2023.

2. Statement of Andrew David Cole dated 1 October 2024 (“First Cole Report”).

3. Statement of Andrew David Cole in Reply dated 12 November 2024 (“Cole Reply”).

4. “Expert Analysis; Matter of: AJ01323142” by Thomas Tolley dated 27 March 2025 (“Tolley Report”).

5. “Expert Certificate” of Senior Constable Steven Greening dated 4 April 2025 (“First Greening Report”).

6. “Expert Certificate” of Senior Constable Steven Greening dated 25 April 2025 (“Second Greening Report”).

7. Statement of Andrew David Cole dated 2 May 2025 (“Second Cole Report”).

8. Unsigned Rebuttal Statement of Thomas Tolley provided to the Tribunal at the hearing on 26 May 2025 (“Tolley Rebuttal”).

38. The evidence also included statements from Senior Constable Greening dated 10 April 2025 and 30 April 2025. There was also written evidence provided by Crime Scene Officer Thomas Edward Egan. He did not give oral evidence at the hearing.

First Cole Report

39. Mr Cole has expertise in ballistics. This is the science of projectiles in motion. He is a Forensic Firearm & Toolmark Examiner.

40. Mr Cole, as at 1 October 2024, was a Team Member in the Australian Federal Police Firearms & Toolmark Identification (Eastern Command) Forensic Command. He had held that position since October 2023 and formerly had been a Crime Scene Officer with the NSW Police Force, including in June 2023.

41. Mr Cole holds a Bachelor of Science in Applied Chemistry from the University of Technology, Sydney and a Masters of Science in Forensic Science from Syracuse University, USA. He has also completed the National Training Curriculum in Forensic Firearms Examination and is accredited by the Australasian Forensic Sciences Assessment Body. His training includes theoretical and practical assessment in the examination, identification and testing of ammunition and ammunition components and also the examination, identification and testing of firearms and firearm parts. He also has training in Comparative microscopy.

42. Mr Cole gave evidence that NSW Police had inspected three different .22 calibre rifles. He said that these were rifles seized from the Applicant. He described the tests carried out as follows. Three test bullets were fired from each rifle. This was followed by an examination of the characteristics of the impact damaged bullet extracted from the victim. Mr Cole conducted a comparative microscopic examination between the test bullets and the impact damaged bullet.

43. Mr Cole’s evidence was that as a bullet travels down the barrel of a rifle, unique markings from the drilling process used to create the barrel are imparted on the bullet. Mr Cole says that these markings can be used to identify a particular bullet as having been fired from a particular firearm. He describes the methodology as “much like a fingerprint can be used to identify a person”.

44. Mr Cole’s evidence was that his comparative microscopic examination between the impact damaged bullet and test fired bullets from a particular .22 rifle with a specific serial number, revealed that all four bullets had been discharged from the same specific firearm. This was one of the rifles seized from the Applicant.

45. Attached to the First Cole Report was a visual image marked AC-4 showing what he had examined. Mr Cole’s conclusions relied on the evidence in that image. That results of his examination were confirmed by a second expert examiner.

46. The Applicant filed certain expert evidence on 1 November 2024. The Cole Reply of 12 November 2024, replying to that expert evidence, attached a further image of the impact damaged bullet and a test fired bullet. It was a higher resolution image showing a comparison image of the impact damage bullet and a test fired bullet. Mr Cole’s again said that microscopic forensic examination of each bullet indicated that they “were all fired from the same firearm”. The Applicant at the hearing did not rely on the expert evidence which the Cole Reply addressed.

Tolley Report

47. The Respondent relied on the Tolley Report. Its author was Thomas Tolley. Mr Tolley holds a Masters degree in Ballistics with distinction from Cranfield University, UK. He also lectures at Masters level in Forensic Ballistics at that University and other institutions. He is an Official Master Gunsmith/Gunmaker and holds a Diploma with Honours from Ashworth College, Georgia, USA. He also holds a Diploma in Audio Engineering from the School of Audio Engineering. He is also a co-author of a paper on ballistic projectile penetration.

48. The Tolley Report concludes that it can be “ruled out that the projectile originated from anywhere” on the Applicant’s property. His opinion is that the bullet in question originated from under 150 metres from the place the injury occurred.

49. The Tolley Report also said that the Respondent’s evidence presented “critical gaps”. In particular, the Tolley Report says that the Respondent’s examiner did not provide any data on the number of striations or whether they were consecutive, describing this as the primary method of ensuring reliability in bullet identification (“CMS”). In the Respondent submission, the CMS method is the industry standard for ensuring objectivity and reducing false positives. The Tolley Report described the method as follows:

“The CMS method, widely accepted within the field of forensic ballistics, involves the detailed evaluation and documentation of the number of consecutive matching microscopic striations across corresponding land engraved areas. …. This quantitative approach allows for a more objective and reproducible standard when determining whether two bullets were fired from the same firearm”.

50. The Tolley Report also said that Mr Cole did not mention the use of the Integrated Ballistics Identification System or IBIS. He described the method as allowing for the digital capture and comparison of bullet cartridge case markings across a wide database of known firearm evidence.

51. A further objection raised by Mr Tolley was that Mr Cole did not distinguish between class characteristics of rifles of the class in question, including their lands and grooves common to the class, from the particular characteristics of the rifle in question.

52. The Tolley Report says that the absence of a CMS methodology and his other criticisms of the First Cole Report raised “significant reasonable doubt” regarding the claim that the bullet must have come from the identified firearm. Mr Tolley’s opinion was that without documentation of the “objective comparison process”, it was not possible to support the conclusion that the recovered bullet was fired from the Applicant's rifle or even from a firearm of the same make and model.

50. Mr Tolley also gave evidence based on his examination of the topography and an acoustic analysis.

51. The evidence included a description of topographical features, specifically a large natural mound between the two locations that could, in Mr Tolley’s opinion, block and deflect sound waves. The Tolley Report questioned whether the victim could have heard the “bang” he reported in the firing, if it came from the Applicant’s property.

52. The Tolley Report concluded that the ammunition used was subsonic. Mr Tolley concluded that while there may have been sufficient energy to breach a person's outer dermal layer, penetration to a significant depth or the infliction of a serious injury of the kind suffered by the victim was extremely unlikely if the bullet had been fired from the Applicant’s property.

53. A further objection in the Tolley report to the Respondent’s expert evidence was that, in the opinion of Mr Tolley, penetration of the victim’s calf at the angle of actual penetration, was highly unlikely if the bullet had been fired from the Applicant’s property.

54. The Tolley Report states:

“Taken together, the ballistic, acoustic, and forensic findings converge on a consistent conclusion: the projectile could not have originated from any location on the defendant’s property. The combination of obstructive terrain, sub-audible acoustic findings, and insufficient impact energy renders it scientifically improbable and forensically unsupported that the incident occurred from the defendant’s property”.

58. The reference at [57] above to the “defendant” is assumed to be a reference to the Applicant.

Second Cole Report

59. The Second Cole Report sets out Mr Cole’s response to the Tolley Report. In the Second Cole Report, Mr Cole restates his conclusion that all four bullets had been discharged from the same specific firearm including the impact damaged bullet and three test bullets fired from that firearm.

60. He says that the CMS methodology is not utilised by the NSW Police Force Ballistics Investigation Section. However, he says that it is a method that is covered by one assignment in the National Training Curriculum for firearm examiners. Mr Cole did not think that the methodology was industry standard or widely accepted as best practice. He says that the industry standard methodology he used was that of the Association of Firearm and Toolmark Examiners (“AFTE”).

61. Mr Cole goes on to say that he had now also performed a CMS method examination and concluded that there was a match between the exhibit bullets, allowing him to conclude that they had been fired from the same rifle. He attached to his report relevant image on which he based his conclusions as “Annexure 2”.

62. Mr Cole observes that Mr Tolley did not conduct his own CMS study using the CMS criteria. He said that he had been afforded the opportunity to conduct an independent assessment of the microscopic comparison.

63. Mr Cole agreed with the land and groove class characteristics identified by Mr Tolley. He also agreed that these characteristics alone did not distinguish one firearm from another. What Mr Cole relied on, however, was a microscopic examination of the individual markings on the bullets. He says that NSW Police used specific individual characteristics (as he had done) to make an identification, rather than class characteristics which did not aid in identification.

64. Mr Cole also said that one of the test fired bullets was placed on IBIS and no match was discovered. He said that IBIS was not used as an identification tool but as a sorting tool.

65. Mr Cole also addressed the opinions of Mr Tolley as to acoustics, topography and penetration. These matters are discussed further below.

Greening reports

66. Senior Constable Greening provided evidence in two reports, the First Greening Report and the Second Greening Report. Both were created in April 2025. Senior Constable Greening is an accredited Forensic Firearms Examiner under the Australasian Forensic Sciences Assessment Body under the National Institute for Forensic Science. He also holds an Associate Degree of Policing Practice from Charles Sturt University and a Bachelor of Science from the University of Newcastle. He has been employed in the Ballistics Investigation Section since August 2016. In addition, he completed modules within the National Training Curriculum in Forensic Firearms Examination.

67. Senior Constable Greening conducted an examination of the bearing surfaces of the impact damaged bullet and the three test fired bullets. He conducted that examination under a LEICA FSC comparison microscope. The examination concluded that the three test fired bullets and the impact damaged bullet had been discharged from the same firearm.

Tolley Rebuttal

68. Mr Tolley in his rebuttal confirmed that he did not attend NSW Police Forensic Ballistic Laboratories to conduct a forensic striation match. He said that that task had already been conducted by Mr Cole and “it was neither appropriate nor necessary for me to replicate it”. He says that his task was to critique and not reproduce Mr Cole’s analysis.

69. Mr Tolley continued to question the First Cole Report on various grounds including the level of documentation. He says that this was insufficient by modern forensic standards.

70. He also critiques the CMS study later carried out by Mr Cole and set out in the Second Cole Report. He says that the comparison was conducted using photographs and not through live comparison and outside any standard operating procedures. He says that there needs to be proper exclusion of subclass characteristics and repeatable striation maps.

71. He also again questioned the Respondent’s evidence regarding the forensic lethality of the projectile after the alleged travel distance. He repeats his conclusion that the degree of penetration could not be attributable to a projectile travelling hundreds of metres sub-sonically.

72. Mr Tolley also said again that acoustic field tests showed that it was impossible for the victim to hear the shot from the distance it was said to have been fired.

73. He also restated his view that the degree of penetration observed was far more consistent with a firing at close range. The wound also, in Mr Tolley’s opinion, suggested a steep descending angle that was inconsistent with a flat or rising trajectory.

Review of evidence

74. There was no dispute that the rifle tested by the experts was one of the rifles seized from the Applicant. There was also no dispute that the impact damaged bullet examined by the experts was the bullet that penetrated the victim on 11 December 2022. The dispute between Mr Tolley, on the one hand, and the Respondent’s experts, on the other, was whether or not the impact damaged bullet was fired from the rifle seized from the Applicant and tested.

75. In my opinion, all of the three experts who gave evidence had the required qualifications to give expert evidence on ballistics. They had the expertise to match a particular firearm with a bullet fired from the firearm, based on examination of the firearm and the bullet. I make this finding based on the qualifications of each expert described above.

76. Mr Tolley and Mr Cole both accepted that there was a degree of subjectivity in assessing the evidence and coming to a conclusion identifying a bullet with a particular firearm from which it had been fired. This applied whether the technique used was one of microscopic examination used by the AFTE or the CMS method. However, for the reasons set out above, I am satisfied that despite the degree of subjectivity of expert opinion, each of the three experts who have given evidence is sufficiently qualified in the field of ballistics to opine on the question at hand. That question is whether or not on the basis of the examination of the rifle in question, the test fired bullets and the impact damaged bullet, the bullet fired on 11 December 2022 came from the identified rifle.

77. The test carried out by the NSW Police was to fire three test bullets from the rifle in question seized from the Applicant. Evidence given by Mr Cole was that examination under a microscope of the impact damaged bullet and the three test bullets fired from the same firearm, allowed him to conclude that the impact damaged bullet had been fired from the same firearm as the three test bullets (see [44] above).

78. Senior Constable Greening also carried out tests by examining under a microscope the surface of the impact damaged bullet and three test bullets. He too came to the same conclusion, namely that all four bullets had been fired from the same firearm (see [67] above).

79. Mr Tolly did not carry out his own tests. He described his task as critiquing the tests carried out on behalf of the Respondent. He gave evidence that the CMS method was preferred to that depending on microscopic examination first used by the Respondent.

80. The Respondent’s experts rely on the images in evidence to support their conclusions. The Applicant at the hearing questioned the Respondent’s expert witnesses as to particular matters concerning the composition and quality of the images. However, these were not matters that raised questions as to the accuracy of what the images captured or their reliability as evidence.

81. The tests carried out by the Respondent are evidenced by the images showing the results of the comparisons made between the impact damaged bullet and the test fired bullets. Those tests, in my opinion, show on the balance of probabilities, that the impact damaged bullet fired on 11 December 2022 came from the rifle possessed by the Applicant and tested by the Respondent.

82. In the Tolley Rebuttal, Mr Tolley questioned the adequacy of the level of documentation recording the microscopic tests first carried out by the Respondent and described in the First Cole Report. He said that the documentation was insufficient by modern forensic standards. However, there was nothing in the evidence to indicate that the images showing the results of the tests carried out were not sufficiently probative. The Respondent’s experts’ explanation of the evidence, in my opinion, allows the Respondent to reach the conclusions she has reached as to the identification of the impact damaged bullet with the rifle from which it had been fired.

83. Mr Tolley had, in the Tolley Report, criticised the absence of a CMS test. The Respondent, however, subsequently carried out a CMS test, whose conclusions accorded with those of the Respondent’s earlier test. Mr Cole found “five consecutive matching striae”. Mr Tolley, in reply, then, questioned whether Mr Cole had sufficient training to carry out an examination using the CMS methodology and also criticised the analysis as having been conducted “using photographs, not through live comparison and outside any standard operating procedure”.

84. I do not think that the criticisms made by Mr Tolley cast sufficient doubt on the accuracy of the photographs used and the ability of the Respondent to rely on those images in coming to the conclusions reached in her expert evidence. Mr Tolley did not show anything in the images that could raise doubts about their accuracy in a way that affected their probative value.

85. There was no other expert ballistic evidence using the CMS method or any other method produced by the Applicant showing conclusions that were different to the conclusions reached by the Respondent’s experts.

86. The experts agreed that there were standard groove and class characteristics for firearms of the relevant class. These did not differentiate one firearm of the class from another. The evidence of the Respondent, however, was that the NSW Police used specific individual characteristics rather than class characteristics and doing so, could identify particular firearms. I accept this evidence and that the Respondent’s experts have in their testing, relied on individual characteristics.

87. The Tolley Report said that the Respondent did not identify the maker of the ammunition used. He also said that the Respondent did not identify whether the bullets used travelled at subsonic or supersonic speed. However, there was no explanation provided as to why these matters needed to be known when applying the microscopic examination test and the CMS test. I understood the Respondent’s expert evidence produced by Mr Cole and Senior Constable Greening to depend on the results of microscopic examination and the CMS test, rather than the identity of the manufacturer of the bullets and the speed at which they could travel.

88. That evidence is that that microscopic examination showed that the “unique markings” on the barrel of the firearm in question were imparted on the bullets in evidence and showed that they were fired from the same firearm stored by the Applicant. That conclusion was confirmed by the CMS tests carried out on behalf of the Respondent.

89. Mr Tolley’s evidence, extends to matters arising from the topography of the area between the Applicant’s property and the site of the shooting. Based on his examination of the conditions surrounding the site of the shooting in issue, Mr Tolley said that it could be ruled out that the projectile originated from anywhere on the Applicant’s property.

90. Mr Cole gave contrary evidence as to some of these matters. He said that Mr Tolly had failed to take into account the projectile’s energy density. The Respondent, in addition, questions the credentials of Mr Tolley to give evidence on topography, acoustics and penetration.

91. There was evidence that neither the victim nor any other witnesses could see anyone firing close by. This evidence supports the conclusion that the firearm that was used on 22 December 2022 was not fired from close by, contrary to Mr Tolley’s opinion that the firing was from close by. The victim's evidence was also that he heard a “bang” before being struck on his calf with a bullet.

92. Regardless of whether or not Mr Tolley has the requisite expertise to give evidence going to matters concerning topography, acoustics and penetration, I do not need to rely on a consideration of Mr Tolley’s evidence as these matters and Mr Cole’s contrary evidence, nor on the actual evidence of the victim, that go to these matters.

93. The expert evidence of Mr Cole and Senior Constable Greening is sufficient to allow me to conclude that the impact damaged bullet in evidence, was fired from the rifle identified by them. Mr Tolley’s evidence as to matters of topography, acoustics and penetration is not sufficient to displace the evidence of Mr Cole and Senior Constable Greening as to the origin of the bullet in question from the rifle owned by the Applicant.

94. The Applicant submitted that a conclave between the experts would be necessary or useful to ascertain whether they could reach a common position. I do not think that an experts’ conclave will be necessary. The evidence before the Tribunal, for the reasons set out above, is sufficient to allow the Tribunal to determine the matter without the need for an experts’ conclave.

95. I do not think that the Applicant’s evidence as to the number of .22 calibre firearms sold in the area can assist the Tribunal. The evidence of the Respondent was that the only property in the vicinity that stored such rifles was that of the Applicant. In any event, evidence of the Applicant as to the number of .22 calibre firearms in the area cannot displace the expert evidence and the conclusions reached by the Respondent’s experts.

Public interest

96. In circumstances were a gun in the possession of the Applicant was fired with the result of injuring a man in a public area, I find that there are risks in the Applicant possessing and using firearms.

97. There is no evidence to show the circumstances of discharge of the firearm. Any such evidence may have allowed for a more detailed examination of risk.

98. The evidence, however, is simply that a firearm was used causing injury to a member of the public in a public area of Wagga Wagga. But for the fact that the victim was struck in the calf and not on some other part of his body, the consequences of the firing could have been much more serious.

99. There are no matters in the evidence raising doubts as to the character of the Applicant. However, matters of public interest do not necessarily depend on questions of character. They require having regard to a wide range of factors. This will include concerns relating to public protection and public safety (Constantin, at [33]).

100. Whether a person should have a firearms licence or not requires satisfying the Tribunal that there is “virtually no risk” in the possession of a firearm. It cannot be said this is such a situation, in circumstances where the evidence is that a rifle in the Applicant's possession was fired into a public area, causing injury to a person.

101. The evidence was that only the Applicant and his son had access to his firearms safe and that his son was not present on the property on 11 December 2022. This allows for a conclusion of fact that, on the balance of probabilities, the Applicant fired the rifle in question on that day.

102. Even if the Applicant had not been the person firing on the day, the Respondent says that the only other explanation for the shooting was that someone else was able to access the Applicant's firearm safe to shoot on the day. I agree with this submission. Any failure to properly secure firearms is also a matter that engages considerations of the “public interest” (Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25, at [41]).

103. I find that it is not in the public interest for the Applicant to continue to hold a firearms licence for the reasons set out at [96] – [102] above.

Affirmation of Respondent’s decision

104. For the reason set out at [103] above, the administratively reviewable decision of the Respondent under review is affirmed.

Orders

1. The administratively reviewable decision of the Respondent 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

Decision last updated: 04 June 2025