Schwarz v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 106

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Schwarz v Commissioner of Police, NSW Police Force [2025] NSWCATAD 106

Hearing dates:

30 and 31 January 2025

Date of orders:

13 May 2025

Decision date:

13 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING – firearms licensing – licence refusal – fit and proper person – objection to evidence – allegations of evidence being illegally obtained

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Radiocommunications Act 1992 (Cth)

Radiocommunications (Jamming Equipment) Permanent Ban 2023 (Cth)

Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2011 (Cth)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

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

Briginshaw v Briginshaw (1938) 60 CLR 316

Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42

Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657

Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWADTAP 16

Forest v Suzanne [2022] NSWCATAP 292

French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221

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

Johns v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 283

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31

Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68

Keegan-Jacques v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 145

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

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Power v Commissioner of Police [2023] NSWCATAD 44

Tannous v Commissioner of Police [2011] NSWADT 116

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Nicholas Schwarz (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
J Knackstredt (Applicant)

Solicitors:
Yates Beaggi Lawyers (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2023/00291597

Publication restriction:

An order was previously made that pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal previously made, the publication or broadcast of the name of the Complainant’s name (as defined in the decision) is prohibited.

REASONS FOR DECISION

1. By way of application to this Tribunal dated 13 September 2023, the Applicant seeks administrative review of a decision to revoke the Applicant’s category ABDGH firearms licence in accordance with section 24(2) of the Firearms Act 1996 (NSW) (the Act) and clause 20 of the Firearms Regulation 2017 (NSW) (the Regulation).

2. For the reasons below, I affirm the decision the subject of the review.

Background

3. The Applicant is an army veteran having served in this capacity for over ten years.

4. On 27 October 2022, the Applicant was issued a category ABDGH firearms licence. Until the revocation, the Applicant had held a firearms licence since 2002.

5. Between 2001 and 2023, the Applicant was charged with at least 10 traffic infringement including negligent driving and speeding offences. During this time, the Applicant had his drivers’ licence suspended on two occasions and disqualified on one occasion for furious driving on 25 March 2004. According to the Police Fact Sheet:

At the time of being observed the defendant's vehicle was estimated to be travelling at an estimated speed in excess of 120kph. At the time of being observed the defendant was chasing after another unknown cycle which was also travelling at the same excessive speed. Police commenced to follow both cycles and their speeds were estimated to be at 140klms per hour as they headed east past the Valley Heights Railway Station ... During this time the defendant’s cycle and the unknown cycle changed lanes at least five times overtaking in excess of 20 cars whilst doing this. Police lights and sirens were activated and radio notified of a pursuit. The defendant’s vehicle and the unknown cycle, continued eastbound for another kilometre, overtaking cars at speeds once again in excess of 140 klms per hour. Just prior to the speed camera, …, the defendant appeared to brake hars[h]ly and then pull into lane 1. As police went to go past him to continue pursuing the unknown cycle, the defendant commenced to merge back into the police vehicles lane and a collision almost occurred. The defendant then slowed down and was not seen again by police, who continued the pursuit o[f] the unknown cycle. At 2.40pm on the 26th March 2004 the defendant attended [the] Police Station and was placed under arrest. He readily admitted the offence of speeding, stating to police that he had been cut off by the unknown cycle... He stated that he suffered a touch of road rage and decided to chase the cycle to obtain his number. He admitted to police that his speed would have been around 140klms per hour when first seen … and that he had no idea how fast he was going from then on, apart from the fact that he knew it was in excess of the sign posted speed limit of 80klms per hour. The defendant was extremely remorseful regarding his actions and knew that what he did was wrong. …

6. On 15 March 2023, the Applicant was placed under arrest after allegations of sexual touching were made against him by an employee of his at his place of work (the Complainant).

7. At the time of arrest, the Applicant’s firearms and ammunitions were seized and a copy of the body worn footage is included in the materials before the Tribunal. Upon seizure, the police located several weapons and articles in the Applicant’s possession which were the subject of charges as described below and which were a butterfly knife, silencer and a mobile signal jammer. In addition, over 5000 rounds of ammunition were also seized by the police. The Applicant also has a knife collection of approximately 100 knives. The Applicant described himself as:

Being ex-army, I have an interest in, and collect all sorts of, military stuff, like helmets, webbing, flags and decommissioned shells. I have an interest in the military, and military memorabilia …

8. It was not in dispute that these items were obtained without a warrant and their obtainment pre-dated the issuing of any Provisional Apprehended Violence Order (PAVO) and pre-dated the suspension of the Applicant’s licence by a day. In this respect, according to the oral evidence of Sergeant Richard Shields, the PAVO was issued in the early hours of the next day being 16 March 2023 and the suspension notice issued a few hours after that.

9. The Applicant described the seizure of the butterfly knife, silencer and allegedly a mobile signal jammer as “illegally obtained evidence”. As explained below, this formed the primary basis for the Applicant’s application to exclude this evidence and references to that evidence.

10. The Applicant was made subject to a PAVO with the Complainant listed as the person in need of protection. He was subsequently charged with the following:

1. Two counts of sexually touch another person without consent – T2;

2. Two counts of possessing or using a prohibited weapon without permit-T2; and

3. Possessing prescribed equipment contrary to permanent ban.

11. On 16 March 2023, the Applicant’s licence was suspended and on 13 July 2023, it was revoked.

12. On 1 August 2023, the Applicant requested an internal review and on 17 August 2023, the Respondent affirmed the decision to revoke the Applicant’s licence. The Respondent found that it would be contrary to the public interest for the Applicant to hold a firearms licence pursuant to s 24(2)(d) of the Act and clause 20 of the Regulations.

13. On 23 January 2025, the prohibited weapons charges were withdrawn.

14. On 23 July 2024, the sexual touching charges were set down for hearing for a second time given the non-appearance of the Complaint. The Complainant, again, failed to appear. The PAVO and the sexual touching charges were withdrawn.

Issues for determination

15. The main issue in the proceedings is whether the correct and preferable decision in the circumstances, is the revocation of the Applicants licence. This is considered below.

16. In addition to the main issue, there were several preliminary issues that required determination.

17. The first preliminary issue was with respect to the Respondent’s application for non-disclosure of the Complainant’s name. The Applicant consented to that application on the condition that the Respondent’s name is also suppressed as well as other details relating to the Respondent. On 31 January 2025, after hearing from the parties and considering their submissions, I made orders pursuant to s 64(a), (b) and (c) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) suppressing only the Complainant’s name. I delivered my reasons ex tempore during the hearing.

18. The second preliminary issue was the Applicant’s application to exclude from the evidence information referring to ‘silencer’, ‘jammer’ and ‘butterfly knife’ as described in the Applicant’s written submissions in chief filed 13 November 2024 (the Alleged Prohibited Weapons Evidence).

19. In written submissions in reply, the Applicant’s application was broadened to include all information which was “obtained illegally” as described by the Applicant’s Counsel. In oral submissions, the Applicant expanded the information to which the application pertained again, and included objections based upon hearsay and opinion (Hearsay and Opinion Evidence). The Tribunal requested that a table be completed by the Applicant’s representatives clearly listing the materials the subject of the application and specifying in each case, the objection taken. A table was filed during the hearing which was subsequently amended given the observations of the Tribunal that what was included in the table was inconsistent with what had otherwise been claimed in oral and written submissions. A copy of the table as amended containing a list of the Applicant’s objections was subsequently provided.

20. In the morning of the second day of hearing, I dismissed the Applicant’s application to exclude the evidence the subject of that application indicating that the determination did not deal with the weight to be given to such evidence which would be considered in due course. With the consent of the parties, I indicated that I would include my reasons for that decision on that preliminary issue in either my published reasons dealing with the substantive application or a written interlocutory decision after the hearing – whichever was more expedient. This allowed the hearing to continue rather than adjourn while the decision on the interlocutory application was prepared. I have included the reasons below.

Legal principles

21. The application to the Tribunal is brought under s 75(1)(c) of the Act. The administrative review is to be conducted under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

22. Subsection 63(1) of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. In doing so the Tribunal may exercise the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act).

23. The Tribunal is required to base its findings of fact on logically probative material: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68. The standard of proof applying in this review is the balance of probabilities. These is no burden or onus of proof on either party. The standard of proof in the ‘Briginshaw standard’: Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 (NSW) does not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42 [89]-[91], [127], however, it can provide guidance to the exercise of the Tribunal’s discretion.

24. Section 24(2)(d) of the Act authorises (but does not mandate) the revocation of a firearms licence ‘for any other reason prescribed by the regulations’.

25. Clause 20 of Regulation provides one such reason – ‘if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence’.

26. The term ‘public interest’ is not defined but the Courts and this Tribunal have consistently held that the concept of the 'public interest’ is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, the Court stated:

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

27. The public safety is to be given paramount consideration, as mandated by the relevant firearms legislation. The underlying principles of the Act are set out in s 3 and include:

(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…

28. Section 11 of the Act allows the Respondent to issue or refuse a firearms licence application relevantly providing:

(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

…

(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.

29. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].

30. In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety., the Respondent referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (“Ward”) and the oft cited standard of the Tribunal being satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, 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 at [7] 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 Act and comments in cases should not be substituted for those tests.

31. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

32. Rather, as stated in Webb at [32] when considering the question of public safety:

"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".

33. With respect to relevant considerations, the Tribunal has found that even where an applicant does not have a criminal record or has had criminal charges dismissed, the Tribunal is to consider matters indicating criminal conduct: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62] to [64]. In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20] (Mercer), it was noted that:

...The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, ... the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion.

Submissions and evidence

The Applicant’s submissions and evidence

34. With respect to the issue of whether the Alleged Prohibited Weapons Evidence and the Hearsay and Opinion Evidence be admitted, the Applicant made the following submissions.

35. First, with respect to the Alleged Prohibited Weapons Evidence, the Applicant relied upon Forest v Suzanne [2022] NSWCATAP 292 at [40]-[42] in which the Appeal Panel considered that the Tribunal has a discretion to refuse unlawfully obtained evidence. In this case, the Applicant contended that Alleged Prohibited Weapons Evidence was obtained at a time when the police did not have a warrant to search the Applicant’s home and nor did they have the power to seize the weapons as the suspension was not affected until the next day. With respect to the latter, the power of seizure was dependent upon the suspension coming into force pursuant to s 25 of the Act.

36. The Applicant relied upon the cross-examination of Sergeant Shields and the body worn footage of the arrest of the Applicant to submit that the arrest was reckless. In this respect, the Applicant submitted that there was no urgency and need not have taken place in the evening and was not pre-empted by a telephone call to the Applicant by the police. The Applicant submitted that the Tribunal should find that Sergeant Shields’ evidence showed a disinterest in legal obligations and the Tribunal “should send a message” to the police in this respect noting that there had been no disciplinary proceedings against Sergeant Shields. Additionally, the Applicant contended that Sergeant Shields’ superior officer had not given evidence, and an adverse inference should be drawn in that respect.

37. Taking the factors in s 138(3) of the Evidence Act into account consistent with Forest v Suzanne, the Applicant submitted that the Tribunal’s discretion should be exercised to exclude the Alleged Prohibited Weapons Evidence because:

1. while it was conceded that the evidence suggests the knife is a “butterfly knife”, the expert’s report included in the s 58 bundle opining that the alleged silencer is a silencer does not expose its reasoning as to that conclusion except that it is based on an examination of the exhibits. Additionally, the expert report entitled “signal jammer” and supporting that the jammer is a prohibited jammer was described by the Applicant as bordering on the “incomprehensible”. In oral submissions, the Applicant further submitted that given the technical character of the legislative regime that it was far from clear that the item is a prohibited jammer.

1. As to the importance of the evidence, while the Applicant accepted that the evidence of the butterfly knife and silencer is “obviously relevant” to whether the Applicant is a fit and proper person, the Applicant contended that none of the witnesses identified any concerns with respect to the Applicant’s character which made the evidence of possession of prohibited weapons “not strongly determinative of the ultimate question”.

2. The Applicant also contended that the Tribunal would have regard to the desirability of administrative decision makers complying with the law and the circumstances surrounding the illegal search including that it was unlikely that the police would have obtained this evidence otherwise.

38. Secondly, with respect to the Hearsay and Opinion Evidence, the basis of the objections taken were as summarised in the table annexed to this decision and were based upon the fact that such evidence was prejudicial in the context of this proceedings because it could not be tested, had never been tested and was, in some cases, at least second-hand hearsay.

39. With respect to the decision the subject of the administrative review, the Applicant submitted that no weight should be placed on the sexual touching allegations because what is alleged did not happen. In this respect, the Applicant denied the allegations, gave evidence with respect to those allegations and was cross-examined. Conversely, the Applicant submitted, consistent with its application to omit the Hearsay and Opinion Evidence, that the evidence said to support the allegations had never been tested and cannot be tested in these proceedings as the Complainant is not a witness and the evidence relied upon in the facts sheets and COPS report is at least second-hand hearsay.

40. In addition to the Applicant’s submissions that contended that the evidence was insufficient to find that the alleged sexual touching occurred, the Applicant also urged the Tribunal to find, positively, that the conduct did not occur. In this respect, the Applicant referred to and submitted that:

1. Reliance should be placed on the evidence of six other witnesses, which included other employees of the Applicant’s business, members of the Applicant’s local rifle club and gym (including a highway patrol officer) and a client of a business of the Applicant’s. Except for one witness who is an employee of the Applicant, each witness was given a copy of the police fact sheets setting out the charges brought against the Applicant. The Applicant relies on this evidence as “completely refuting” the evidence of the Respondent as to his conduct and character and the lack of corroboration of the sexual touching allegations. With respect to the latter and the claims made by the Applicant as recorded in the fact sheet, the Applicant contended that while witnesses gave evidence that the Complainant had told them about receiving text messages from the Applicant, the type of behaviour alleged that painted the Applicant as an aggressive misogynist would have been noticed by others and it was not. For example, speaking poorly about women, yelling at employees and commenting on whether female employees were attractive. Additionally, their evidence is that the Complainant never mentioned any sexual touching despite informing them of receiving text messages.

2. The evidence supported that the Complainant appeared to be a troubled individual who was attempting to blackmail the Applicant and asking for money prior to charges being laid against him and, in that context, fabricated the sexual touching allegations after 1 January 2023. To support this, the Applicant relied upon text messages annexed to his statement alleged to have been received by the Complainant on 1 January 2023 and in respect of which, the Applicant draws the Tribunal’s attention to the fact that no allegations of sexual touching are made in the messages alleged to be from the Complainant. The Applicant summarises these text messages in the written submissions as follows:

A. the first message states 'as you know I'm currently back in the blue mountains' and 'having to resign from my job in Brisbane'. Inferentially, the message was from the complainant, who had gone to live in Brisbane and then returned in about December 2022 and who knew Mr Schwarz's friend 'Sophie'. The message refers to 'constant inappropriate messages, comments by you' and 'a situation between you and Sophie in the past. Should I also mention you have a fiancé, which you've constantly cheated on behind her back’. The message then threatens to make a complaint to Fair Work, and asks Mr Schwarz to offer compensation;

B. Mr Schwarz responds saying he will go to the Police as 'this is blackmail", at which point the complainant replies 'Lol Ive already been to the police for sexual Harassment. Shown them all the harassing messages. Given the timing of the charges, this appears to have been false. What is more probable is that the complainant subsequently laid the charges in order to avoid the perceived consequences of Mr Schwarz going to the Police first;

C. the exchange continues on, alternating between the complainant's threats to go to Fair Work, the Police, and Mr Schwarz's fiancé.

3. The Applicant also drew the Tribunal’s attention to the text messages between the Complainant and the Applicant produced by the Respondent describing them as clearly sexual in nature but clearly not a one-sided conversation with the Applicant and the Complainant being equal participants in the conversation and both saying things of a sexual nature. By way of the Applicant’s oral evidence, the Applicant agreed that the texts were sexual in nature but that he was joking and not serous and they were in the context of the Applicant and the Complainant knowing each other for a long time and someone that he socialised with. In any case, the Applicant argued that it is not clear how any of these text messages has anything to do with the Applicant’s fitness to hold a firearms licence.

4. The allegations are not likely to have occurred given the layout of the workplace.

5. The Applicant had given evidence and made himself available for cross-examination and had consistently denied the conduct taking place.

41. With respect to the prohibited weapon charges, the Applicant contended that when assessing a person’s suitability to hold a firearm’s licence, a lack of knowledge of the obligations created by the Weapons Prohibition Act 1998 (NSW) is not of the same importance as knowledge of the obligations created by the Act. The Applicant submitted that he had a long history of compliance with the Act and this should be given significant weight to find that the Applicant’s firearm possession did not give rise to any increased risk to the public. The Applicant submitted that the decision of Johns v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 283 supported this approach. That decision was described as follows by the Applicant in the written submissions:

In Johns v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 283, the applicant was found guilty in criminal proceedings of possessing five silencers, with the Local Court ordering a two-year conditional release order. The applicant in that case was aware he needed a permit to own silencers, albeit he believed the law would be amended soon to allow them without a permit. Whilst the Tribunal considered it inappropriate to overturn the revocation of his firearms licence whilst there was a year left on the conditional release order, it did not find it would otherwise be against the public interest for him to be granted a licence at the end of that period: at [95]. Among other things, the Tribunal referred to the applicant's long history of complying with firearms legislation, and the references he put on.

42. Additionally, with respect to the “jammer”, the Applicant submitted that the evidence did not establish that it was a prohibited pursuant to the Radiocommunications Act 1992 (Cth) and that in relation to an alleged breach of the Radiocommunications Act 1992 (Cth), the Tribunal needs to make a finding of contravention on the civil standard which cannot be met on the evidence. Therefore, the Applicant submits that the Tribunal “need not take into account [the circumstances related to the jammer] at all in the assessment of the application generally”.

43. Otherwise, the Applicant explained his procurement of those items by way of his evidence. In each case, the Applicant contended that their possession was not for an unlawful purpose but because he is a collector of such items. The Applicant gave evidence that:

1. In the early 2000s when the Applicant was about 17 years old, the Applicant bought the butterfly knife from an antique knife dealer. He was not aware that it was illegal and, at the time of the police finding it, had forgotten that he had it. The knife was not taken out of its original packaging and kept in a safe. The Applicant submitted that the contravention was “at the lower end of seriousness” and the risk to the public was always, minimal.

2. In the early 2000s, the Applicant bought the “jammer” from ‘Paddy’s Markets’ from what he described as a “toy stall”. The Applicant said he had assumed it was a toy or gimmick and like the butterfly knife, never took it out of its packaging and kept it in a safe. In those circumstances, the Applicant submitted that any breach caused by possessing the “jammer” would not carry much weight.

3. In around 2023, the Applicant purchased a rifle that included a silencer from a firearms shop. He was informed by an employee that he was allowed to have it because it came in the packaging and because he had a category D licence. He relied upon this advice in the context of believing that it had been cleared by customs. A copy of a photo of the gun case with the silencer is included in the evidence. The Applicant submitted that it was not unreasonable to have relied upon this opinion. In cross-examination, the Applicant, inter alia,

1. admitted to using the silencer when calfing to reduce the stress of the animal and when shooting kangaroos because the use of the silencer stopped them from scattering.

2. in response to the query as to why he had asked the questions related to the silencer of the firearms dealer and whether he had concerns about it, he responded that he did not know what the correct situation was at the time but that he knew friends who were contract shooters and had silencers but he was aware that those friends had permits. He gave evidence that he only subsequently came to know that his friends held permits.

3. after the seizure of his firearms and the other items, the Applicant went through “everything” that he had collected and considered whether anything else was prohibited to satisfy himself that permits were not required.

44. The Applicant also drew the Tribunal’s attention to the fact that the Applicant:

1. was compliant with police when they searched his home on 15 March 2023

2. was an active and enthusiastic member of his local pistol club which supports his local community;

3. as a licensed firearm holder, has performed the services of a contract shooter which is also of service to his local community;

4. has a long history of safely handling firearms having grown up shooting and serving in the Army for over ten years. The Applicant further contended that this service does not provide a basis to draw an inference that the Applicant knowingly acquired and kept prohibited weapons;

5. the lost of his licence has been devastating for the Applicant and the evidence of the other witnesses shows him to be an emotionally intelligent, balanced and responsible person who can be treated to handle and store firearms safely.

45. Lastly with respect to the Applicant’s traffic history, the Applicant disputed that the Applicant had committed “at least 15 traffic offences” (but accepted during cross-examination that he had committed about ten or more traffic infringements). The Applicant also disputed that it was appropriate to draw an analogy with the current circumstances and that of the applicant in Keegan-Jacques v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 145 (as submitted by the Respondent and described below). This was said because in Keegan-Jacques v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 145, the applicant professed a lack of knowledge about firearms on social media wit anti-Muslim hate speech leading to a risk of firearms theft and retaliatory violence. With respect to the most serious traffic offence as described at paragraph 5 above, the Applicant agreed with the facts as set out in the fact sheet and also gave evidence including:

A motorcyclist nearly knocked me off my motorbike, and I sped off after him to get his number plate. I was being an idiot. The police ended up chasing him and not me, and I pulled over as soon as I saw them. I later found a card at home, asking me to come to Springwood police station, which I attended the next day. I admitted that I was the one on the other motorbike.

I should never have driven that way. If I had crashed I would have died, or hurt someone else. I was hooning. I have been fined for speeding since, but I have never again driven anything like the way I was driving that day.

My firearms licence was not revoked after I was charged with that offence, or after I was convicted.

46. However, the Applicant maintained that the offence has no real independent bearing upon the Applicant’s fitness to hold a firearms’ licence. Otherwise, the Applicant informed the Tribunal during cross-examination that he drove a lot and his driving history was a result of not paying attention as opposed to a desire to want to speed.

47. In addition to the oral submissions in support of these contentions, the Applicant relied upon:

1. The application for administrative review filed in this Tribunal and dated 13 September 2023.

2. The Applicant’s written submissions in chief filed on 13 November 2024; written submissions in reply filed 16 December 2025; and written submissions on the Allegedly Prohibited Items filed during the hearing on 31 January 2025.

3. Statement of Ms Catherine Atkinson, a family friend of the Applicant who also occasionally works with the Applicant.

4. Statement of Ms Angela Kelly, who has been employed in the Applicant’s business for the past 8 years.

5. Statement of Mr Christopher Jayne, who is a highway patrol officer and a friend of the Applicant.

6. Statement of Ms Christina Swartz, the Applicant’s mother, dated 8 November 2024 (including page 5 of that statement which was filed on 30 January 2025 during the hearing) marked “A7”.

7. Statement of Mr Claudio Carrasco, who is the secretary of the pistol club to which the Applicant belonged.

8. Statement of Mr Richard Benbow, who is a member of the pistol club and had engaged the Applicant form time to time as a contract shooter to clear vermin.

9. His statement.

10. Medical certificate certifying that the Applicant is medically and psychiatrically fit to continue to hold a firearms’ licence dated 29 January 2025.

11. Table entitled Applicant’s Objections to the Respondent’s Evidence filed 31 January 2025.

12. Photograph described at paragraph 56(5) which was marked by the Applicant during his oral evidence given on 31 January 2025.

13. Photographs of the workplace staff locker room

48. The Applicant also gave oral evidence and was cross-examined. With respect to the Applicant’s oral evidence: An order that a certificate pursuant to s 128 of the Evidence Act 1995 (NSW) be issued to the Applicant was made during his cross-examination.

The Respondent’s submissions and evidence

49. With respect to the issue of whether the Alleged Prohibited Weapons Evidence and the Hearsay and Opinion Evidence be admitted, the Respondent made the following submissions.

50. First, regarding the Alleged Prohibited Weapons Evidence, the Respondent accepted that the “procedural issue” related to the issue of the suspension notice the day after the “seizure” was not insignificant and it was not in dispute that the events of 15 March 2023 occurred without a power of entry. However, the Respondent drew the Tribunal’s attention to the fact that in Forest v Suzanne (which was relied upon by the Applicant), the Tribunal ultimately admitted evidence that had been illegally obtained after considering that the desirability of admitting that evidence outweighed the undesirability of doing so and after consideration of whether unfairness arose in the circumstances. The Respondent submitted that, likewise, while it accepted that certain evidence relied upon to show the Applicant was in possession of illegal items was obtained without a warrant, the guiding principle is determining whether the material is its relevance guided by principles of natural justice. Applying this, the Respondent submitted that the material is plainly relevant and should be admitted given the desirability of doing so and given that no unfairness arises.

51. Otherwise, the Respondent submitted that Sergeant Shields was a forthright and honest witness who was acting with respect to issues that had legitimately came to the attention of the police by virtue of the statement of the Complainant. The Respondent also submitted that no adverse inferences should be drawn because of the time of the arrest because it s a 24 hour, 7 day a week job and consistent with the oral evidence of Sergeant Shields, it was strongly refuted that there was no urgency. Further, it was contended that it was clear from the evidence including Sergeant Shields oral evidence that Sergeant Shields and the police were not reckless or indifferent. For example, it was clear that Sergeant Shields had spoken to his superior prior to taking steps but the issue was one of timing. As for the fact that Sergeant Shields gave evidence as opposed to another member of the police, Sergeant Shields explained that the Constable who had carriage had resigned but that Sergeant Shields had been assisting with the matter was the appropriate person to give evidence.

52. With respect to the decision the subject of the administrative review, the Respondent submitted that the correct and preferable decision was to affirm it because it is not in the public interest to grant the Applicant a firearms licence.

53. The Respondent relied upon the Applicant’s driving history, alleged possession of prohibited weapons and the allegations as against the Applicant of sexual touching leading to his arrest. These allegations were described in the materials before the Tribunal including in the police facts sheets, the COPS reports and the brief of evidence in the Local Court criminal proceedings including the Complainant’s statement made to the police annexing copies of text messages.

54. With respect to the Applicant’s driving history, the Respondent described the Applicant as occasioning “at least 15 traffic offences” and during cross-examination, the Applicant gave evidence that he had received a further infringement this year related to speeding but is challenging it in court. The Respondent relied upon Keegan-Jacques v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 145 at [81] for the proposition that the Applicant’s breach of traffic laws and regulations, which are aimed at ensuring public safety, indicates a disregard for regulatory schemes aimed at ensuring public safety.

55. With respect to the sexual touching allegations, the written submissions of the Respondent describe those allegations as follows:

On 15 March 2023, the Applicant was arrested by police and charged with two counts of 'sexually touch another person without consent-T2'. The Applicant had worked with the complainant in the matter at his family's … business... It was alleged that since the complainant began working at the bakery, the Applicant began to sexualise her. On one instance in May 2022 whilst at work, the Applicant was alleged to have pushed the complainant with his body, grasping her buttock whilst pushing his penis into her. It was alleged that the Applicant had sent several messages of a sexual nature to the complainant, including "...you just need a good dicking lol" and "...its us older one's we give the good dicking's lol", amongst others. The complainant alleged that they responded to these messages out of discomfort.

56. With respect to what the Respondent describes as the “prohibited weapon charges”, the Respondent submitted that the possession of these items raises significant concerns with respect to the Applicant which should be given considerable weight due to the seriousness of these offences. The Respondent also submitted that

1. possession of these items was contrary to the objects of the Act; and

2. the Applicant’s military background and participation in the firearms licensing regime since 2002 would suggest that he was aware of the nature and seriousness of possessing prohibited weapons but knowingly possessed them anyway. During cross-examination, the Applicant accepted that he was familiar with radio frequency jammers because of his time in the Army but that the jammers were on a much bigger scale.

57. Further allegations are made in the statement of the Complainant with respect to the Applicant’s use of his firearms as follows:

He would regularly make comments in conversation with myself and other people about shooting people such as "I wish I could go home and get my rifle and just shoot him” when a delivery was late and "I wish I could shoot half these people with my gun". He also said “If I had it my way I would get my rifle and shoot all those people". He said this when he heard on the radio about a women's rights protest. He also shot his neighbours cats last year when the cats kept coming onto the property.

58. This was denied by the Applicant who also informed the Tribunal that his neighbour did not own cats.

59. The Respondent relied upon its oral submissions and written submissions marked “R1”, the s 58 bundle and the evidence given during the cross-examination of the Applicant. Additionally, the Respondent tendered:

1. The body worn footage described above containing three files on a USB.

2. Statement of Sergeant Richard Shields dated 29 November 2024 which annexed the brief of evidence in the sexual touching proceedings, the transcript in those proceedings, the COPS report related to the charges of possessing prohibited weapons (which is also contained in the s 58 bundle) and the brief of evidence in the prohibited weapons proceedings. Sergeant Shields also gave oral evidence and was cross-examined;

3. A copy of the notice of suspension dated 16 March 2025.

4. A document entitled “Second Statement of Nicholas Schwarz” dated 29 November 2024 which was tendered during the cross-examination of the Applicant; and

5. A photograph of a weapons case containing the silencer.

Application to omit the Alleged Prohibited Weapons Evidence and the Hearsay and Opinion Evidence

60. As noted above, I dismissed the Applicant’s application to exclude the evidence the subject of that application and my reasons for doing so are as follows.

61. Section138 Evidence Act 1995 (NSW) states:

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained—

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

62. However, as provided in s 38(2) of the CAT Act, the Tribunal “is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”. Pursuant to this provision, the Tribunal has a discretion as to how the enquiry is conducted.

63. I accept, as submitted by the Applicant, that the starting point is that the Tribunal should not generally accept evidence illegally obtained as decided in Forest v Suzanne [2022] NSWCATAP 292. This is the starting point because to accept such evidence may be seen to encourage or condone unlawful conduct. However, that is only the starting point of the inquiry, as further stated in Forest v Suzanne [2022] NSWCATAP 292 at [42]:

In deciding whether to receive such evidence the Tribunal should consider whether the desirability of its admission outweighs the undesirability of doing so and whether there is unfairness that may arise by its receipt or rejection in the particular circumstances of the case. In this regard the guiding principle in s.36(1) applies. The factors set out in s 138(3) of the Evidence Act may provide guidance as to relevant considerations including as to the nature of the evidence and the purpose for which it is sought to be relied upon.

64. In the current circumstances, it is not in dispute that the evidence was obtained in circumstances where the police did not have a right of seizure or entry. Accordingly, I find that the Alleged Prohibited Weapons Evidence was improperly obtained. However, like the Appeal Panel in Forest v Suzanne [2022] NSWCATAP 292, I also find that, in the circumstances of this case, its admission outweighs that fact because of the probative value of the evidence. This is because evidence of the Applicant’s compliance or non-compliance with schemes designed to protect the public is highly relevant to the issues before this Tribunal. That is especially true where the non-compliance relates to prohibited weapons which are regulated by an analogous scheme as firearms and which has at its heart, the protection of the public.

65. In this respect, I do not accept the Respondent’s contentions that sought to characterise conduct that was not specifically related to firearms as “not strongly determinative of the ultimate question”. That contention is too restrictive and inconsistent with numerous decisions of this Tribunal which have considered an applicant’s compliance with other schemes. As stated in Tannous v Commissioner of Police [2011] NSWADT 116 at [32] with respect to traffic offences:

… I consider that this course of conduct by the Applicant in relation to traffic offences does indicate an inability to appropriately and seriously consider and observe legal regulations which are imposed for public safety reasons, and further indicates a lack of responsibility for public safety.

66. See also Power v Commissioner of Police [2023] NSWCATAD 44 at [61(3)]. With specific reference to consideration of an applicant’s possession of a silencer without a permit in the context of a decision to revoke a firearms licence, see French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221

67. Further, I reject the submissions of the Applicant that Sergeant Shields’ evidence showed a disinterest in legal obligations, an intentional breach or reckless indifference. I find that Sergeant Shields was a forthright and honest witness who explained that during his shift on 15 March 2023, he obtained the set of facts written by his superior, being Constable Taylor and spoke with Constable Taylor about the need to arrest and seize the Applicant’s firearms. Sergeant Shields genuinely believed he exercised a lawful power to seize the firearms at the time that they were seized. I also accept that while the “procedural issue” as described by the Respondent, was not insignificant, those issues arose primarily because of timing with the suspension notice being issued after the arrest.

68. I draw no adverse inferences because of the time of the arrest or that Sergeant Shields did not telephone the Applicant prior to attending his residence, which consistent with his evidence, is not a step that is ever taken nor of the vehicle used to arrest the Applicant. Additionally, I do not draw any inferences because the Constable did not give evidence. As explained by Sergeant Shields, he has resigned and, in any case, Sergeant Shields was the officer with carriage of the proceedings before the Local Court.

69. Additionally, I do not accept that the Alleged Prohibited Weapons Evidence would not otherwise have been obtained. In this respect, I reject the Applicant’s contention that if the Respondent had had the right to seize the firearms and to enter the premises, that that still would have precluded seizing any prohibited weapons. Pursuant to s 22 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act):

A police officer who is lawfully on any premises may seize and detain any dangerous article that the police officer finds on the premises, if the police officer suspects on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence.

70. A “relevant office” includes an offence against the Weapons Prohibition Act 1998 (NSW): s 20(c) of LEPR Act. Section 7 of the Weapons Prohibition Act 1998 (NSW) makes possession of a prohibited weapon without a licence an offence.

71. Lastly, with respect to considerations of fairness consistent with principles of natural justice, the Applicant was present at the hearing and able to give evidence as to the Alleged Prohibited Weapons Evidence as well as make any submissions with respect to those matters. Sergeant Shields was also available for cross-examination. Any concern about procedural fairness may be overcome with the Applicant availing himself of those opportunities.

72. With respect to the Hearsay and Opinion Evidence, I accept that the evidence is hearsay and opinion evidence, but I also accept that the rules of evidence do not apply. The Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: CAT Act, s 38(2). The Tribunal is also to act with "as little formality as the circumstances of the case permit": CAT Act, s 38. Any prejudice with respect to this evidence can be overcome by the Applicant putting on his own direct evidence which the Applicant (or evidence of an expert) and through considerations of weight to be given to the evidence. As summarised above, the Applicant availed himself of this opportunity.

73. Accordingly, I dismissed the Applicant’s application to exclude the Alleged Prohibited Weapons Evidence and the Hearsay and Opinion Evidence. However, as noted above, that determination did not deal with the weight to be given to such evidence which is considered below.

Findings of fact

74. It is not in dispute that:

1. The Applicant procured and possessed a butterfly knife, for which he did not have a permit, for approximately 23 years prior to it being seized by the police on 25 March 2023;

2. The Applicant procured and possessed a silencer, for which he did not have a permit, for less than a year prior to it being seized by the police on 25 March 2023.

75. In New South Wales, butterfly knives (also known as balisongs) and silencers are classified as prohibited weapons pursuant to Schedule 1 of the Weapons Prohibition Act 1998 (NSW), meaning you need a permit to possess or use them.

76. The Applicant, however:

1. does not admit that the item which is identified as a “mobile signal jammer” per the user guide packaged with that item, is prohibited. According to the Applicant’s evidence, he had assumed it was a toy or “a low-power gimmick”. It is not in dispute that the Applicant possessed this item approximately 23 years prior to it being seized by the police on 25 March 2023; and

2. denies the allegations of sexual touching.

77. The disputed allegations of fact are dealt in paragraphs 78 to 101 below followed by my consideration of the decision the subject of the administrative review based upon those findings of fact.

78. With respect to the factual allegations of sexual touching, the Respondent relies on primarily on the Brief of Evidence which was prepared for the purposes of the Local Court proceedings as well as COPs entries. This Brief of Evidence included a statement of the Complainant and text messages between the Applicant and Complainant. Apart from the statement of Sergeant Shields annexing the Brief of Evidence and the transcript dismissing the Local Court proceedings, the Respondent has no evidence that was prepared for the purposes of these proceedings and did not produce any witnesses giving direct evidence of the alleged conduct giving rise to the charges of sexual touching.

79. It is not in dispute that the evidence that was prepared for the purposes of the Local Court proceeding was never tested in the Local Court. The Complainant was not available to give evidence at that hearing and, as a consequence, the charges were withdrawn.

80. The Respondent now relies on the untested evidence, Neither the Applicant nor the Tribunal has had the opportunity to test the evidence or to assess the credibility of the witnesses. Similarly, the Respondent relies on the information contained in the COPs database but neither the Applicant nor the Tribunal has had the opportunity to test that evidence.

81. In contrast, the Applicant has provided sworn evidence and was available for cross-examination.

82. The Respondent relies on the decision in Joseph v Commissioner of Police in support of its contention that, in determining whether it would be contrary to the public interest for an individual to hold a licence, it is not relevant that charges have not been established to the criminal standard. The Tribunal is entitled to consider criminal conduct, whether that conduct has resulted in the individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed. It is the conduct, rather than the conviction, that is of concern to the Tribunal.

83. In the circumstance of this matter, I accept that some weight is to be given to the material put forward by the Respondent with respect to the sexual touching charges. However, I note that the Applicant denied the charges. I also note that the Applicant provided sworn evidence and was cross-examined. In these circumstances, I give greater weight to the Applicant’s evidence where it contradicts the evidence provided in the statements on which the Respondent relies.

84. The Applicant consistently denied the allegations of sexual touching by way of his written materials as well as his oral evidence. The Applicant also relied upon the evidence of six other witnesses, which included other employees of the Applicant’s business, members of the Applicant’s local rifle club and gym (including a highway patrol officer) and a client of a business of the Applicant’s (such evidence being described at paragraph 40(1). The evidence of other employees of the business also contradicted the Complainant’s evidence as to the Applicant’s attitude and conduct. The Applicant also gave evidence about the layout of the workplace and the roles undertaken which also raised doubts as to the accuracy of the account given by the Complainant of the conduct of the Applicant.

85. With respect to the text messages contained in the Brief of Evidence, I do not accept that they provide a persuasive basis to make a finding that the sexual touching did occur or did not occur. They do not assist or detract from either parties position. On the one hand, they evidenced that the Applicant sent messages to the Complainant which were of a sexual nature however the conversation was not one-sided with the Compliant also responding in a like fashion.

86. With respect to the allegations that the Complainant was a “troubled person” who sought to blackmail the Applicant, the evidence is insufficient to make such findings. The evidence in support of these allegations are text messages which the Applicant alleges are from the Complainant. However, I am not satisfied as to the provenance of those text messages. According to the evidence, the Applicant did not recognise or know the telephone number from which they came despite clearly having the Complainant’s number, at least at an earlier time.

87. The charges were withdrawn but it is still open to the Tribunal to find that the conduct related to those charges occurred. However, on the evidence before me considered in full, I cannot be satisfied that the sexual touching occurred as alleged and so I cannot attribute to the Applicant the conduct the subject of the charges for the purpose of considering the issues before this Tribunal. The finding that I cannot be satisfied that the sexual touching occurred as alleged is sufficient to expose my reasons for not placing weight on the fact that the Applicant was charged with sexual touching.

88. With respect to whether the item identified as a jammer by the police, is prohibited, the Applicant contended that what is before the Tribunal would not satisfy it because the expert report contained in the s 58 bundle borders on the “incomprehensible” which does not reach a clear conclusion and because of the technical character of the legislative regime such that it was unclear whether it applied to the item found at the Applicant’s residence.

89. I do not accept either of those propositions for the reasons below.

90. The Radiocommunications (Jamming Equipment) Permanent Ban 2023, (the Ban) which is an instrument made under subsection 172(1) and section 174 of the Radiocommunications Act 1992 (Cth), permanently bans “PMTS jamming equipment”, with “PMTS” standing for public mobile telecommunications service.

91. The Ban commenced on 10 March 2023 and was in force as at the time the item was seized. However, the prohibition of mobile phone jammers existed prior to this time, consistent with the Ban’s predecessor - Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2011 and prior to that, by virtue of the Mobile Phone Jammer Prohibition, which was made by the former Australian Communications Authority in 1999. The 1999 Mobile Phone Jammer Prohibition banned the operation or supply, or possession for the purposes thereof, of a device designed to interfere with radiocommunications or disrupt or disturb radiocommunications operating within the frequency bands 870–960 MHz or 825–845 MHz. However, the Declaration, which replaced the Prohibition, broadened the ambit of the ban. It was not limited to specific frequencies but broadened it to frequency bands used for the supply of a public mobile telecommunications service presumably because the frequencies utilised had increased from those that were used at the time of the Mobile Phone Jammer Prohibition. That concept was adopted in the Ban with the definition of “PMTS frequency band” being “a frequency band used for the supply of a public mobile telecommunications service”.

92. The Declaration prohibited the following devices:

(a)   the device:

(i)   is designed to have an adverse effect on radiocommunications; or

(ii)   would be likely substantially to interfere with, disrupt or disturb radiocommunications; and

(b)   the device operates within one or more frequency bands used for the supply of a public mobile telecommunications service (whether or not the device also operates within other frequency bands).

93. The Ban prohibits “PMTS jamming equipment” which is defined as:

(1) Subject to subsection (2), each of the following is PMTS jamming equipment:

(a) equipment that is both:

(i) designed to have an adverse effect on radiocommunications; and

(ii) capable of operating on a frequency within a PMTS frequency band (whether or not it is capable of operating on another frequency);

(b) equipment that is designed to block radio emissions between:

(i) a base station used in the provision of a public mobile telecommunications service; and

(ii) a mobile station;

whether or not the equipment is designed to have other purposes or consequences.

(2) Despite subsection (1), two-way communication equipment is not PMTS jamming equipment

94. Having considered the legislative instruments, I do not accept that their substance is such as to make their application difficult or obscure whether they apply.

95. With respect to the expert report entitled “Signal jammer” contained in the s 58 bundle, I do not accept that its substance is “incomprehensible” or should be given little weight.

96. As provided in that report, Mr Chung who is the author, received a Higher Diploma in Electronic Engineering and a Mater Degree in Digital Communications Systems and is employed by the New South Wales Police Force in the Advanced Technology Centre.

97. As extracted in the reference section of the report, as at the time of the report, Australia used certain network frequencies which are then listed in a table. As at the time of the report, each of these frequencies would fall within the meaning of “PMTS frequency band” for the purposes of the Ban:

In Australia, 850MHz, 900MHz, and 2100Mhz are the common 3G frequencies. B1, B3, B5, B7, B7, and B28 are the main 4G bands. n78 is the main 5G band used in Australia, but we're now also seeing some coverage on n1, n5, n28, and n40. Telstra and Optus are also using n258 for mmWave 5G. If you want to use a phone in Australia, it will need to support these frequencies and bands.

Australian Network Frequencies
2G	3G	4G	5G
Telstra	N/A	850MHz (B5)	700NHz (B28) 900MHz (B8) 1800MHz (B3) 2100MHz (B1) 2600MHz (B7)	850MHz (n5) 3500MHz (n78) 26GHz (n258)
Optus	N/A	900MHz (B8)	700NHz (B28) 1800MHz (B3) 2100MHz (B1) 2300MHz (B40) 2600MHz (B7)	2100MHz (n1) 2300MHz (n40) 3500MHz (n78) 26GHz (n258)
Vodafone	N/A	900MHz (B8)	850MHz (B5) 1800MHz (B3) 2100MHz (B1)	700MHz (n28) 3500MHz (n78)

98. The approach taken by Mr Chung as per this report, was to power the item up and determine if it transmitted radio frequency signal that interfered with radio spectrum already in use on the Australian frequencies listed in the table for 3G and 4G as well as n78 which is in the 5G band. A spectrum analyser, which can confirm whether a jammer will interference or disturb the ambient condition of a target device as indicated by Mr Chung, was used to the see the outputs with photographs of the analyser results included in the report. A photograph was also included of the spectrum analyser prior to turning the alleged jammer on which allowed a comparison to be performed of the outputs before use of the alleged jammer and after use of the alleged jammer. The results of these tests go to whether the second part of the definition of “PMTS jamming equipment” as contained in the Ban is fulfilled namely, is it equipment capable of operating on a frequency within a PMTS frequency band?

99. While the report notes that the interference caused by the alleged jammer was “not too effective” on frequencies B28, B40 and n78 which is consistent with the spectrum analyser photographs, the photographs of the spectrum analyser for frequencies B1, B3, B5, B7 showed marked changes. Based on these tests, the following opinion is recorded:

This essentially confirms it will interfere/ disturb the ambient condition near the “target” device, say a mobile phone or laptop equipped to work through public mobile networks.

100. I accept this opinion, and I find that the second part of the definition of “PMTS jamming equipment” as contained in the Ban is fulfilled because is it equipment capable of operating on a frequency band used for the supply of a public mobile telecommunications service.

101. As for the first part of the definition of “PMTS jamming equipment”, namely whether it was designed to have an adverse effect on radiocommunications, I also find that this is fulfilled. In coming to this conclusion, I place weight on the substance of the user guide for the item which is attached to Mr Chung’s report and that the Applicant admitted was the user guide for the item located in his residence. The user guide expressly declares that the device is to be used as a “jammer”. It is also described as a “portable mobile signal jammer” and “jammer for shielding mobile phone signal” supporting that the item was designed for this purpose. The introductory paragraph of the user guide states:

Thanks for choosing our jammer for shielding mobile phone signal.

In order to be familiar with the operation of this machine as soon as possible, this end-user & manual provides, in detail, the Introduction of product, method of use, system set, the points for attention and variable notices.

The series of mobile jammer have been identified and obtained corresponded [sic] certificates by the electric equipment testing center [sic] of the public security ministry of china. the electric equipment testing center of Shenzhen City and the protecting product testing center [sic] for electromagnetism leaking of Guangdong Province,

102. I find that the item identified as a “jammer” that was seized by the police on 16 March 2024 was “PMTS jamming equipment” pursuant to Radiocommunications (Jamming Equipment) Permanent Ban 2023 which was permanently banned pursuant to s172 of the Radiocommunications Act 1992 (Cth). I further find that it would have been a prohibited item pursuant to the Declaration. This means that the Applicant was in possession of a prohibited item from at least 2 March 2011 which was the commencement date of the Declaration.

Consideration

103. As I cannot be satisfied that the sexual touching occurred as alleged, I place no weight on the allegations of sexual touching nor the fact that the Applicant was charged with those offences.

104. Irrespective, however, the Applicant possessed three items that were prohibited weapons and articles, two of which had been in the Applicant’s possession for a significant amount of time. While, the Applicant contended that their possession was not for an unlawful purpose, in each case, the Applicant’s evidence was that he assumed it was permissible to acquire and possess those items because he was able to acquire and possess those items and in the case of the silencer, he gives evidence that he was told by the person selling the items to him, that it was permissible (although there is no evidence from the alleged person who purportedly gave that advice).

105. The Applicant being 17 years of age as at the time of acquisition of two of the prohibited items does not provide a justification for their possession which subsisted for decades. The Applicant had ample time to make enquiries and obtain advice as he matured. Even if there was a basis to claim ignorance as a teenager, that time elapsed long ago. In any case and irrespective of the licensing regime, a licensee must ensure that they have knowledge of their obligations and comply with them which requires engagement and vigilance given that laws can change. This is especially important when the licensing regimes pertains to firearms and/or weapons. There is no evidence that the Applicant took any such steps prior to the seizure in March 2023 to inform himself of his obligations with respect to the butterfly knife and jammer. If he did, he ignored that information.

106. The position with the silencer was different in that the Applicant did not acquire it as a teenager but as a man in his fifties, who by that time, had an extensive history with firearms. According to the evidence, the Applicant:

1. Was first issued with a firearms licence more than twenty years ago;

2. Had been shooting “since [he] was a kid”;

3. Had grown up being “drilled” on firearm safety by his grandfather and father;

4. Joined the Australian Army Cadets in school;

5. Was an active and long-time member of a pistol club for over a decade including acting as a committee member;

6. Acted as a contract shooter to rid vermin and pests from farms including with friends who used silencers (but were permitted to do so);

7. Joined the Australian Army as a solider in 2005 until 2016; and

8. Had an avid interest in “military stuff” describing himself as a collector of, “military stuff, like helmets, wadding, flags and decommissioned shells”.

107. The allegation that the Applicant was not aware that silencers are a prohibited weapon in New South Wales or believed that silencers were not a prohibited weapon sits uneasily with this extensive experience. Silencers have been prohibited in New South Wales since long before 1998. Analogous with the situation in French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221 it is impossible to believe that the Applicant, as experienced as he was with firearms including in shooters' organisations and as a contracted shooter as well as identifying himself as having an avid interest in weaponry and “military stuff”, was unaware of that fact.

108. In any event, ignorance of the law is of course no excuse. Even accepting the Applicant’s explanation for acquisition of these items, the acquisition and possession of all three items evidence at worst, an inability or unwillingness to effectively inform himself of his obligations and comply with them or at best, a passivity with respect to his obligations and a lack of responsibility by relying upon the advice of sellers of such goods or the fact that acquisition of the items is possible. With respect to the latter, the dangers of endorsing, and the difficulties in accepting, the contention that the Tribunal should excuse the acquisition of such items or otherwise not draw adverse inferences with respect to their possession because the very act of acquisition provides a basis to infer that the acquirer was of the belief that it was permissible to possess them, is self-evident.

109. The evidence from witnesses as to the Applicant’s use of firearms and his active membership of the pistol club do not overcome these concerns. In that regard, I do not accept that Johns v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 283 at [95] (Johns) is authority for the proposition that evidence of complying with firearms legislation and references would lead the Tribunal to a different conclusion in the circumstances of this case. In respect of the Applicant’s submission, the Applicant contended in Johns at [95] that “whilst the Tribunal considered it inappropriate to overturn the revocation of his firearms licence whilst there was a year left on the conditional release order (CRO), it did not find it would otherwise be against the public interest for him to be granted a licence at the end of that period” because of the applicant's long history of complying with firearms legislation, and the references he put on.

110. First, paragraph [95] of that decision as referenced by the Applicant says nothing of what would occur at the end of the CRO period. To place paragraph [95] in context, the preceding paragraphs are extracted below.

[93] Though he is still subject to 12 months of his CRO, the likelihood of his reoffending can be assessed as slight to non-existent. While the direct effect on public safety may have been minor (as the Local Court’s relatively light sentence suggests), the gravamen of his offences was his failure to maintain conscientious compliance with all the requirements of the legislation.

[94] Although it is common for applicants to tender character references, those presented by the applicant are unusual, both for their quantity and for their content. They are not mere formal endorsements but detailed descriptions of his moral character, his associations and his extensive contributions to community life, especially in helping and supporting troubled youth and those who have fallen on difficult times.

[95] The fact remains, however, that Glenn Johns is still subject to part of a CRO for indictable prescribed firearms offences potentially subject to substantial penalties. The contraventions were committed knowingly and probably with some planning. I therefore conclude that in the circumstances they cannot be overlooked and the period remaining on the applicant’s CRO for the prescribed offences requires his licence revocation to be affirmed.

111. Secondly, the fact that the Tribunal did not find it would otherwise be against the public interest for him to be granted a licence at the end of the period does not amount to a positive finding as to principle. The controversy to be resolved by the Tribunal was whether it was in the public interest to grant the applicant a licence as at the time the Tribunal was making that decision. The absence of a finding as to what would occur as to a hypothetical future refusal of a future application that had not yet been made and was not yet before it is not a finding appropriate to be made as it would have been beyond the Tribunal’s jurisdiction. As such, nothing can be drawn in those circumstances as to the absence of a finding. The highest it rose was at [106] where the Tribunal observed:

I therefore conclude that public interest considerations on their own would not warrant revocation of his firearms licence but that for the reasons given above in connexion with his CRO, the revocation of his licence must be affirmed. If after the expiration of the term of his CRO he has not come under any further adverse notice and reapplies for a licence, a different view might be taken.

112. That finding rises no higher than indicating that in the future a different conclusion may be drawn but then again, it may not. The Tribunal’s discretion (and nor the Respondent’s agency’s) was fettered in that respect.

113. The Applicant’s poor driving history which has subsisted for an extensive period only affirms and supports these findings. In this respect, it supports the Applicants inability to comply with, or a disregard for, laws and regulations aimed at ensuring public safety. This is true whether it is “15 traffic offences between 2001 and 2023” or ten or more traffic infringements (the latter being accepted by the Applicant).

114. The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasises that strict controls on the possession and use of firearms are imposed for this reason.

115. The Tribunal is satisfied that the decision to revoke the licence was the correct and preferable decision and affirms the decision. The orders are made accordingly

Orders

116. I make the following order:

1. 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

13 May 2025 - Paragraph [5] - 10 traffic infringement,

Paragraph [19] - Last sentence of this paragraph removed,

Paragraph [112] - That finding rises no higher.

Decision last updated: 13 May 2025