Sherry v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 237

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sherry v Commissioner of Police, NSW Police Force [2022] NSWCATAD 237

Hearing dates:

28 April 2022

Date of orders:

14 July 2022

Decision date:

14 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

Administrative Law – Firearms licensing – refusal of licence – risk to safety - public interest.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Bevan v Commissioner of Police [2004] NSWADT 1

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

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

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

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

Joseph v NSW Commissioner of Police [2017] NSWCA 31

Kassem v Commissioner of Police [2021] NSWCATAD 213

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Lukas v Commissioner of Police [2021] NSWCATAD 268

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95, [23].

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Todorovski v Commissioner of Police [2019] NSWCATAD 192

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

Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91

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

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

Category:

Principal judgment

Parties:

Phillip Sherry (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
W Shukoor (Applicant)

Solicitors:
Australian Criminal and Family Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/00277678

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Phillip Sherry (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Respondent”) to refuse his application for renewal of a Category AB firearms licence under the Firearms Act 1996 (“the Act”).

2. The refusal was on the basis that the Commissioner believed that it was not in the public interest for the Applicant to hold a firearms licence.

3. The delegate formed the view that an incident that occurred on 9 March 2019 (“the 9 March 2019 incident”) placed a member of the public in danger as a result of the Applicant’s misuse of a firearm. When questioned by police in regard to the incident the Applicant denied any knowledge and denied that anyone had been shooting on his property that day. The Applicant was charged with firearms offences in relation to the incident. He was initially sentenced in the Local Court to a two-year conditional release order without conviction. His appeal to the District Court was upheld. He was acquitted of the offence and the sentence was dismissed.

Applicable legislation

4. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.

5. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to refuse a firearms licence application. This application is made under section 75 of the Act and the ADR Act.

6. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

7. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(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.

8. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance in how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

9. Section 11 of the Act provides for the issuing of licences. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.

10. Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations. Clause 5 of the Firearms Regulation 2017 (“the Regulation”) provides:

5 Offences that disqualify applicants

(1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed—

(a)   Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm or any other    weapon, or a firearm part or ammunition, committed under—

(i)   the law of any Australian jurisdiction, or

…

(3) For the purposes of sections 11(5)(d) and 29(3)(d) of the Act, the following offences are prescribed in respect of a person subject to a community correction order or a conditional release order—

(a)   an offence referred to in subclause (1)(a), (c), (e) or (g)–(k),

…

(c)   an offence involving any of the following—

…

(iii)   stalking or intimidation,

…

11. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

1. Determination of administrative review by Tribunal

2. 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.

1. 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.

2. 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.

12. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

13. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.

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

15. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.

16. In Joseph v NSW Commissioner of Police [2017] NSWCA 31 the Court of Appeal stated at paragraphs at [62] - [64]:

1. Before this Court, Mr Joseph relied upon the Appeal Panel decision in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], which is in the following terms:

   “20 We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. 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, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed.”

2. When read as a whole, this paragraph does not assist Mr Joseph. Its tenor is consistent with what I have said above, in particular in its affirmation that there is no reason in principle why an administrative decision maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions. The point correctly made by the Appeal Panel in Mercer is that any available material disclosing the reasons why there were no convictions may shed light on the weight to be given to the evidence.

3. In the present case, the hearsay evidence of a police prosecutor’s view that he did not have direct evidence sufficient to discharge the criminal onus in relation to one element of the relevant offences did not detract from the substantial weight of the other evidence of the 2007 events. First, the only evidence led before the Tribunal as to whether the relevant offences could be proved (as distinct from the hearsay assertions of the police prosecutor about his belief) was Detective Harris’ statement that there was direct evidence of Mr Joseph’s knowledge. Secondly, even in the absence of that evidence, the other evidence of the 2007 events was relevant to the Commissioner’s decision on Mr Joseph’s licence application because it at least raised a strong suspicion that Mr Joseph had been involved in dishonest activities.

   17. It is clear from Joseph v Commissioner of Police, New South Wales Police Force that, irrespective of whether charges were proved beyond reasonable doubt, the Tribunal is to take into account matters indicating criminal conduct even though 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.

   18. The Tribunal can determine itself, on the balance of probabilities, the conduct of an applicant and whether it justifies refusal of a licence. To find the conduct occurred is to not make a finding of criminal guilt. It would simply be a finding of conduct that is not compatible with the privilege of a licence.

The Public Interest

19. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 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."

20. The “public interest” allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

21. “Public interest” embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to “public interest” is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

22. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

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

24. 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The material before the Tribunal

25. The Applicant relies on his own evidence. He provided affidavits dated 13 December 2021 and 5 April 2022. He attended the hearing, gave evidence and was cross-examined. The Applicant also relies on an affidavit by Jimil Amiri dated 15 December 2021; a letter of reference from Ian Burr dated 15 December 2021; written submissions filed in relation to the District Court Appeal and written submissions in relation to these proceedings.

26. The Respondent relies on documents filed pursuant to section 58 of the ADR Act; a statement by Sergeant David Martin Andreatta dated 14 March 2022; a copy of an E.R.I.S.P transcript dated 9 March 2019; a copy of the Picton Local Court transcript dated 11 November 2019; a copy of the emails from the Sporting Shooters Association of Australia (“SSAA”); and a copy of the Firearms Longarms (User) Guide.

The 9 March 2019 incident

27. The parties are in general agreement about the incident that lead to the charges against the Applicant. The Facts Sheet provided in the Respondent's section 58 material sets out an account of the incident said to have occurred on 9 March 2019. The Facts Sheet identifies the Applicant as 'the accused person'; the complainant as 'the victim' and Mr Patrick Spencer as a witness. The Facts Sheet indicates:

• On Saturday 9 March 2019 around 3.40 pm the victim left his home to go for a run along Cawdor Road, Cawdor - a public road. As he ran he heard a whistle sound coming from his right. The sound was like a discharged firearm passing close by him. The victim has a work history of dealing with firearms and is well trained in their use and operation. He continued to run, thinking someone had fired upon him.

• Ten seconds later the victim heard the same noise, again coming from his right. He described the discharge to be sub sonic firearm rounds. He commenced running faster to get away from the situation. In doing so he flagged down a motor vehicle and asked for assistance. The driver allowed him to use his mobile phone to ring police. The driver advised police that he also heard the two firearm discharges and he thought they were coming from the direction of the opposite property.

• Police attended the property and spoke to the owner and the Applicant. Both denied any knowledge of the incident and both denied any person had been on the property all day and certainly nobody was shooting any firearms.

• Police were then contacted by Mr Spencer who advised he had been shooting Indian myna birds on the property with the Applicant at around 4 pm to 4.15 pm on the day. They were using a .22 calibre long rifle which belonged and was licensed to the Applicant. Mr Spencer advised police that whilst he was using his mobile phone, the Applicant discharged a number of rounds towards an Indian mina bird which was at the top of a large dirt wall located on the property. This dirt wall was approximately 20 metres in height and this direction was the same direction as where the victim was running.

• A crime scene was established, and an inspection of the area revealed two dead myna birds and on climbing the large dirt wall police located another dead myna bird on top of the dirt mount.

• The Applicant was placed under arrest and escorted to Narellan Police Station.

• The Applicant participated in electronic record of interview. During that interview the Applicant advised that Mr Spencer had attended his property between 3.30 pm to 4 pm. Due to the large amount of mina birds they used Mr Spencer's .22 calibre rifle to shoot the birds. At the time the Applicant stated he was standing near the first silos at the side of the shed. He first shot 2 birds on the ground in front of the second set of silos. This was the location where police located 2 dead birds. The Applicant stated he then fired one round at a myna bird which was located on the side of the large dirt embankment. This bird was hit had made its way to the top of the dirt mound where it died.

• The Applicant stated that Mr Spencer then fired one shot at a large tree in the opposite direction of the dirt mound, and this was in the area of bushland. The Applicant was unable to explain how the bullets that he was shooting nearly shot the victim. Apart from the bullet ricocheting after it hit the bird. After around 20 minutes of shooting Mr Spencer left the property.

• When questioned as to why he continually lied to police about the situation the Applicant stated he did so because he was scared.

28. It is not in dispute that while initially denying knowledge of the incident, the Applicant subsequently cooperated with police and assisted with the police investigation. It is not in dispute that:

• On 9 March 2019 the Applicant waived his right to silence and participated in a formal police interview.

• On 6 August 2019 the Applicant again waived his right to silence and met with the police ballistics expert, Sergeant David Andreatta, and assisted him in his investigation of the property. He assisted Sergeant Andreatta in forensically reconstructing the scene.

• The Applicant gave sworn evidence in the Local Court proceedings and confirmed the accuracy of his original police interview.

The Respondent’s case

29. The Respondent relies on a number of issues in support of its position that it is not in the public interest for the Applicant to hold a firearms licence.

The 9 March 2019 incident

Sergeant David Andreatta

30. The Respondent relies on the statement of Sergeant Andreatta dated 14 March 2022. Sergeant Andreatta is attached to the Respondent’s Ballistics Investigation Section, Forensic Evidence and Technical Services Command and has been involved in ballistics investigations since October 2012. He is an accredited Forensic Firearms Examiner; a ballistics Investigator and has completed the National Training Curriculum for Forensic Firearms Examiners.

31. In his statement Sergeant Andreatta noted that in 2019 he prepared an expert certificate in regard to the 9 March 2019 incident. He stated:

I understand the following to be the facts relating to events on 9 March 2019:

a.   the Applicant was at Cawdor, NSW;

b.   the Applicant stated they used a .22 Long Rifle calibre CZ (Ceska zbrojovka) Model 452-2E ZKM American bolt action repeating rifle, serial number B484318 (the firearm);

c.   the Applicant stated the firearm was loaded with Winchester brand .22 Long Rifle calibre cartridges;

d.   the Applicant stated they fired the firearm multiple times in both an easterly and south easterly direction; and

e.   in firing the firearm, the Applicant said they raised the firearm slightly upwards towards the crest and top of the mound.

A box of the above-mentioned Winchester ammunition was provided to me for examination during my investigation. I observed that the ammunition box contained a clear warning on the rear of the packet:

‘Caution: Dangerous within 2.5 km (1.5 Miles)’.

Based off information from the ammunition manufacturer, this ammunition:

a.   can travel up to 2.5 kilometres; and

b.   will travel at approximately 324 meters per second (1065 feet per second) (approximate muzzle velocity). 

The location

On 6 August 2019, I attended a chicken farm at Cawdor NSW, where the Applicant stated they discharged multiple shots. At this time, I inspected the property. …

I observed the areas where the Applicant stated they fired the firearm on the day in question.

I observed:

a.   the mound to be approximately eight (8) meters in height consisting of compacted mixtures of soil and rocks;

b.   that it was approximately 240 metres from the stated firing position (from behind the mound) and Cawdor Road, Cawdor;

c.   from the top of the mound to Cawdor Road, there is a clear range and view, with little obstruction; and

d.   there is no direct line of sight from where the Applicant stated they discharged the firearm to Cawdor Road.

The Applicant stated they discharged the firearm from ground level aiming at a bird located approximately two (2) meters below the top of the mound.

As a result of what was explained, I believe the Applicant discharged the firearm slightly upwards towards the top of the mound. In my opinion, by aiming the firearm upwards increased the risk that a bullet may have cleared the mound and travelled beyond the intended target.

Had the bullet cleared the mound it had the capability of travelling a considerable distance, up to 2.5km (based off the ammunition manufacturer’s information) depending on the angle of discharge, weather conditions or other possible factors.

It is also possible that a bullet could have hit an intermediate target and ricocheted/deflected.

Discharging a firearm in the way the Applicant stated may have created a risk of injury to those nearby or beyond the mound.

I believe that the Applicant’s decision to discharge the firearm on 9 March 2019, at the location, in the way he stated, was inherently unsafe due to:

a.   the directions in which he stated he fired the multiple shots;

i)   the discharge of the firearm (in a southeast direction) close to the edge of the farm structures (without visibility beyond that area or between the structures);

ii)   the discharge of the firearm towards the mound and in an upward direction towards the top of the mound (easterly direction);

b.   the lack of sight the Applicant could have had beyond the mound;

c.   the Applicant’s proximity to the mound and subsequently Cawdor Road behind it; and

d.   the open area beyond the mound including Cawdor Road.

32. Sergeant Andreatta did not appear at the hearing and was not required for cross-examination.

33. The Respondent accepts that the Applicant has not been found guilty of any criminal offences from the allegation of firing a firearm in or near a public place and firing a firearm in a manner likely to injure persons. However, it submits that this is not determinative in this matter.

34. The Respondent submits that in order to obtain a licence the Applicant undertook the NSW Firearms (Longarms) Licence Qualification Course and notes that Firearms (Longarms) Users Guide provides that ‘safety is your top priority’ requiring firearm holders to:

1. ‘positively identify your target, always ensure that the firing zone is clear and identify what is beyond your target’;

2. ‘be sure of your target - know what it is, what is in the path between you and your target and what is behind it. Never fire at anything you have not positively identified’;

3. ‘be aware the maximum range of their firearm, particularly if involved in outdoor shooting activities’; and

4. ‘at all times be aware of what is beyond the target and must know where the projectile will go should they hit or miss the Intended target’.

35. The Respondent contends that the 9 March 2019 incident demonstrates that the Applicant fired his firearm in an inherently unsafe manner:

1. the firearm that the Applicant used was a .22 Long Rifle Calibre CZ Model 452-2E ZMK American bolt action repeating rifle;

2. the firearm was loaded with Winchester brand .22 Long Rifle calibre cartridges, proven to be able to travel up to 2.5km and travel at a speed of 324 meters per second;

3. the Applicant was at a property which was approximately 240 metres from the public Road;

4. the Applicant was standing at the ground level in front of a dirt mound that was approximately eight meters high;

5. the mound was located in front of the public Road with a clear range and view, with little obstruction, from the top of the mound to the public Road; and

6. the Applicant discharged the firearm from the ground level aiming at a bird that was situated approximately two meters from the top of the mound

36. The Respondent submits that the unsafe firing of a firearm is a serious matter.

Lying to police

37. It is not in dispute that when the Applicant was first approached by police in relation to the 9 March 2019 incident he denied any knowledge of the incident and denied anyone had been shooting on the property that day.

38. The Respondent submits that on several occasions the Applicant showed lack of honesty to police.

Failure to comply with licence conditions

39. It is not in dispute that the Applicant held a Category AB firearms licence for the genuine reasons of sport/target shooting and recreational hunting/vermin control. It is a requirement that licensees who hold a licence for the genuine reasons of sport/target shooting must be a current member of a shooting club which conducts competitions or activities and the licensee must participate in shooting activities. In May 2009, the Applicant provided his membership of the SSAA in support of his licence application.

40. Clause 107 of the Firearms Regulation 2017 provides that the holder of a sport/target shooting licence must participate each year in at least four shooting activities of an approved shooting club. Clause 108 of the regulation provides that where a licence is issued for the reason of recreational hunting/vermin control and membership of a hunting club is the sole ground supporting that reason, the licensee must participate each year in at least two hunting club events. The Firearms Regulation 2006 made similar provision.

41. The Respondent relies on records from the SSAA which indicate that the Applicant’s membership expired in June 2012, two years before the expiry of his licence. The Applicant failed to participate in the required shooting activities in 2012/2013 and 2013/2014.

42. The Respondent submits that the Applicant failed to comply with his participation obligations, ceased to have a genuine reason for his firearm licence and failed to notify the Commissioner.

43. In Kassem v Commissioner of Police [2021] NSWCATAD 213 the Tribunal stated:

1. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety.

2. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]:

   ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal’s emphasis)

3. The Applicant's contravention in the present matter was not merely a “technical” breach; the Act sets out clear obligations and the Applicant has failed to comply with those obligations over a period of several years. His failure to comply cannot be disregarded as an oversight.

   44. In Todorovski v Commissioner of Police [2019] NSWCATAD 192 the Tribunal noted:

4. The applicant has been in breach of the participation requirements in the Regulation since the 2011/2012 reporting period. No explanation for this lapse has been forthcoming. The tribunal has held that the legislation requires strict compliance: Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95, [23].

5. Presumably some latitude may be extended where, as here, the regulatory requirement is not directly related to safety. But the admitted total disregard of the requirement over a period of five years in this case is a substantial dereliction that cannot be overlooked. In those circumstances it cannot be in the public interest for the licensee to continue to hold the licence.

   45. In Lukas v Commissioner of Police [2021] NSWCATAD 268 the Tribunal said at paragraph [73]:

The underlying principles as stated in s 3(1) of the Firearms Act emphasise that firearms possession and use is a privilege conditional on the overriding need to ensure public safety. The controls imposed on the possession and use of firearms in the interests of public safety include a requirement that the holder of a licence comply with their obligations in relation to participation, and comply with any conditions on the licence. The public interest requires that licensees are aware of and comply with the legislative requirements for holding a licence: Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [4]. The responsibilities of a licence holder are serious, and a licence holder must not only understand and comprehend the legislative requirements, but act in accordance with them.

No notification to the Respondent

46. Pursuant to clause 15 of the Firearms Regulation 2006 the Applicant had an obligation to notify the Commissioner within 14 days if there was any change in a particular stated in the licence. It is not in dispute that the Applicant failed to comply with his participation obligations or that he failed to notify the Commissioner.

Declarations in the 2014 re-application form

47. It is not in dispute that the Applicant re-applied for a licence in July 2014. As part of that application the Applicant declared that he could comply with the legislative requirements. He also declared that the information that he provided was true and correct. Under cross-examination the Applicant conceded that he could not have complied with those requirements because his membership of the SSAA had expired. He did not re-join the SSAA until after he completed the declaration. The Respondent submits that the fact that the Applicant renewed his membership of the SSAA shortly after his licence re-application indicates that he was aware that his membership had lapsed. The Applicant had made a false declaration. The Respondent further submits that a licensee has the obligation to know and comply with the law.

The Applicant’s case

48. The Applicant relies on his own evidence. The Applicant does not have a criminal record.

49. He does not dispute many of the issues raised by the Respondent. However, he does dispute the Respondent’s submissions in regard to the weight to be given to the considerations that have been identified.

The 9 March 2019 incident

50. The Applicant does not dispute the Respondent’s account of the 9 March 2019 incident in any material sense. He does not dispute that he was charged with firearms offences in relation to the incident. The offence of “fire firearm with disregard for the safety of another person” was initially found proven but no conviction was recorded. The Applicant was placed on a good behaviour bond for a period of 2 years. He was ultimately acquitted of the offence and the sentence was dismissed. As a consequence he does not have a criminal record.

51. The Applicant submits that the District Court was not satisfied beyond reasonable doubt that he discharged a firearm in a dangerous manner and that the Tribunal could not be satisfied that he discharged his firearm in dangerous manner, even on the balance of probabilities.

52. The Applicant’s evidence is that at the time of the incident he thought it was safe to shoot myna birds on the property because the birds were on a mound, and he thought that the mound would absorb the bullets. He accepts that the mound was not built as a firing range. He accepts that he would have been firing at an angle towards the target and that it was possible to walk behind the mound but he thought that if he missed the target the bullet would go into the mound. He recognises and accepts that he should not have discharged the firearm in the manner that he did, particularly given the direction and proximity of the main road.

53. The Applicant’s evidence is that he has learned from the experience and that he would not take the same shots again knowing the surroundings and the risks associated with it.

Lying to police

54. The Applicant does not dispute that when police attended his property on 9 March 2019 he was asked if he had been shooting on the property that day. He accepts that he lied to police when he denied that he had been shooting.

55. The Applicant explained that he had initially denied that he had been shooting because he had been scared. He thought that the police were asking about an attempted murder.

56. The extract from his evidence given in the Local Court indicates that he explained that he was scared because he wasn't sure what was happening; he had never been in trouble with the police, and he didn't know how to handle it. He accepted that he lied when he said that he had not shot earlier in the day.

57. He subsequently made the decision to waive his right to silence and participated in a police record of interview in which he told the police all of the circumstances relating to that day. On 6 August 2019 he met with Sergeant Andreatta, the police ballistics expert, at his property and assisted Sergeant Andreatta in forensically reconstructing the scene.

58. The Applicant submitted that he substantially cooperated with investigators and went well beyond what was required of him in the circumstances. He further submits that whatever criticism might be made in regard to his initial denial that he had been shooting is far outweighed by his subsequent conduct.

59. He voluntarily participated in a police interview in which he forthrightly answered police questions and he assisted the police ballistic expert. His actions in assisting Sergeant Andreatta were wholly against his interests and represent a further waiver of his right to silence.

Failure to comply with licence conditions

60. In his statement of 5 April 2022 the Applicant stated:

When I renewed my firearms licence in 2014, the form I completed stated that I should cross out a genuine purpose if I did not wish for my renewed licence to have those genuine purposes anymore. The form was pre-filled with information that was held with the firearms registry. I did not cross out any of the two genuine purposes which were on the form.

61. He does not dispute the records of the SSAA, and he accepts that he did not attend the required shooting activities as mandated by the regulations. He accepts full responsibility for this and stated that in future he will ensure that he attends all of the required shooting activities.

No notification to the Respondent

62. The Applicant does not dispute that he had an obligation to notify the Commissioner within 14 days if there was any change in a particular stated in the licence. He agrees that he failed to comply with his participation obligations and that he failed to notify the Commissioner.

Declarations in the 2014 re-application form

63. The Applicant does not dispute that in his re-application form he declared that he could comply with the legislative requirements and that the information that he provided was true and correct.

64. He accepts that his membership of the SSAA had expired and that he could not comply with the legislative requirements. He explained that he had not renewed his membership because he had forgotten about it and he was not in a strong financial position.

65. He explained that he did not read the application form carefully before he submitted it.

Discussion

66. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

67. I do not understand the Respondent to be asserting that the Applicant is not a fit and proper person to have a firearms licence. However, if I am wrong in that understanding I have formed that view that I have no concerns in regard to the Applicant’s fitness and propriety. The question is one of the public interest.

68. As noted, the Respondent has raised a number of issues in regard to the Applicant’s conduct in relation to the 9 March 2019 incident and his failure to comply with the legislative requirements.

69. In my view, the Applicant’s conduct in regard to his initial dealing with police on 9 March 2019 is understandable but not excusable. Nevertheless, it is my view that his subsequent conduct in assisting the police removes my concern in relation to his initial conduct.

70. Of greater concern is the actual shooting incident. I am satisfied that the Applicant discharged his firearm in dangerous manner. I accept his evidence that at the time of the incident he thought it was safe to shoot myna birds because he thought that the mound would absorb the bullets. However, in my view, the Applicant’s conduct on that occasion demonstrated a misunderstanding of his obligations as a licensee. He was clearly unaware of the potential danger associated with his conduct. It is fortunate that the person who was running along the public road was not injured.

66. I am satisfied that the Applicant has learned a valuable lesson from the 9 March 2019 incident. However, the combination of his misunderstanding of his obligations on that occasion and the fact that he failed to meet his other obligations as a licensee who held a licence for the genuine reasons of sport/target shooting raises the serious issue of his understanding of the obligations as a licensee.

67. In order to be eligible to obtain a firearms licence an applicant must prove that they have a genuine reason for possessing or using firearms. In order to continue as a licence holder, they must maintain that genuine reason. In the Applicant’s case he needed to meet his participation obligations.

68. As the Tribunal noted in Lukas v Commissioner of Police, the public interest requires that licensees are aware of and comply with the legislative requirements. Compliance with the participation obligations provides an avenue by which a licensee can maintain their level of understanding of their obligations as a licensee.

69. In my view, the Applicant should not be allowed to hold a licence until he is able to satisfy the Commissioner that he has sufficient knowledge and understanding of his obligations. This would require that he undertake a firearms safety course.

70. He may also wish to reconsider whether he in fact requires a licence for the genuine reasons of sport/target shooting.

71. If the Applicant is able to satisfy the Commissioner that he has completed a firearms safety course and if he reapplies for the licence, the Commissioner may adopt a different view.

72. However, on the material that is before me I am not satisfied that it is in the public interest for the Applicant to hold a licence under the Act. That being the case, the correct and preferable decision is to affirm the decision to refuse the licence application.

Order

The decision under review is affirmed.

**********

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: 14 July 2022