Smith v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 282

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Smith v Commissioner of Police, NSW Police Force [2018] NSWCATAD 282
Hearing dates:	29 October 2018
Date of orders:	05 December 2018
Decision date:	05 December 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Emeritus Prof G D Walker, Senior Member
Decision:	1. Decision under review set aside.  2. The applicant’s category ABC firearms licence is to be reissued to him subject to the condition that except when required for use on the applicant’s property, his firearms should be kept in approved safe storage on the property of the applicant’s brother Mr Peter Smith, or at such other location as the Commissioner shall approve.
Catchwords:	LICENSING – firearms – living arrangements – alternative safe storage – unregistered non-functional airguns - mental state – public interest.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996
Cases Cited:	Comalco Aluminium (Bell Bay) Ltd v O’Connor (1996) 131 ALR 657; Commissioner of Police, New South Wales Police Force v Toleafoa [1999] NSWADTAP 9; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Director of Public Prosecutions v Smith [1999] Vic Rep 6, (1991) 1 VR 63; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59; Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89; McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354; Mewburn v Commissioner of Police, New South Wales Police Force [2009] NSWADT 24; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 110 ALR 449; O’Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210; Smith v Commissioner of Police (2007) ADT 063448 unreported; 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:	Mr Paul S Smith (Applicant) Commissioner of Police, New South Wales Police Force (Respondent)
Representation:	Applicant in person   Solicitors: Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/00003673

reasons for decision

1. The applicant, Mr Paul S Smith, applied to this tribunal on 4 January 2018 for review of a decision by the respondent Commissioner dated 10 November 2017 to revoke his category ABC firearms licence with effect from 26 June 2017.

2. Aged 50, Mr Smith is a qualified carpenter who left that calling following a workplace injury and for some years now has operated a cattle property, Crawford Park, near Bulahdelah, New South Wales, which he inherited from his parents.

3. He was issued with a category AB licence on 17 April 2006 for recreational hunting purposes. Three weeks later, on 28 April 2006, concerns were raised regarding his mental health in relation to firearms possession. Manning Base Hospital advised police that he had been admitted there for psychotic symptoms with visual hallucinations and paranoid delusions. As a result, his licence was revoked on 14 July 2006 on public interest grounds, the revocation being affirmed by an internal review on 9 November 2006.

4. On 8 May 2007, the Administrative Decisions Tribunal (Montgomery JM) set aside the respondent’s decision, principally in light of evidence from a consultant psychologist, Mr R.F. Peters, who attributed the applicant’s psychotic episode to prolonged unprotected exposure to chemicals such as fibreglass resin, epoxy glues and icotynate, together with sleep deprivation, all resulting from working for a long period in confined spaces while renovating a houseboat. Dr Peters concluded that there were no psychiatric grounds for precluding the applicant from holding a firearms licence (Smith v Commissioner of Police (2007) ADT 063448, unrep. (exhibit R1, p108)). The applicant’s license was reinstated and his firearms safekeeping provisions were approved following an inspection on 6 December 2009.

5. Mr Smith applied for a new licence on 31 July 2013, which was granted, with effect from 10 October 2013. On 13 October 2016, the applicant’s wife, Mrs Robyn Smith, contacted police expressing concerns that their eldest son, Sam Smith, was highly affected by alcohol and might have the key to the applicant’s firearms safe while he was in hospital following a motorcycle accident. On attending the safe storage address, police formed the opinion that Sam Smith was well affected by drugs. He showed police to the firearms safe in a cupboard, which was secured with a combination lock, but he was unaware of the combination. Within the cupboard were two unsecured, unregistered, airguns (a Daisy and a Crossman) leaning against the safe. They appeared to police to be functional. Subsequently the applicant was charged with not keeping a firearm safely and possessing an unregistered firearm.

6. He pleaded guilty to the two Firearms Offences at Forster Local Court on 19 April 2017. Both charges were dismissed without conviction upon his entering into a good behaviour bond for 12 months, which expired on 19 April 2018. At that hearing his legal representative stressed, as the applicant himself had previously, that the airguns had never been in working order.

7. His traffic record included convictions in 1990 for being a disqualified driver, stating a false name and place of abode, driving an unregistered and uninsured motor vehicle and mid-range prescribed concentration of alcohol (PCA). Since then he has received numerous fines for traffic violations, mainly speeding, and his licence has been suspended or cancelled on several occasions. In addition, in 2009 he was found guilty of driving while license suspended and was placed on a good behaviour bond for six months.

Applicable legislation

8. The Firearms Act 1996, s 24(2)(a) (the Act) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. By s 11(5)(d), the Commissioner must not issue a licence to a person who is subject to a good behaviour bond in relation to an offence prescribed by the regulations. The Firearms Regulation 2017 provides that an offence referred to in cl 5(1)(a) relating to the possession or use of a firearm is a prescribed offence for the purposes of cl 5(1)(a).

9. Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Firearms Regulation provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence.

10. Of particular relevance to this application is s 11(4)(a) of the Act, which provides as follows:

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

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

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant’s intemperate habits or being of unsound mind.

11. As the good behaviour bond entered into by the applicant on 19 April 2017 has expired, there is now no issue under s 11(5)(d). The remaining issues are, therefore:

1. whether the Commissioner (and by extension, this tribunal) has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances; and

2. whether the Commissioner (and by extension this tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold a licence.

Respondent’s evidence

12. The applicant not being legally represented at the hearing, it was convenient for the Commissioner to present his case first so as to give the applicant a clearer idea of the case he had to meet. It is therefore also convenient to set out the evidence in that order.

13. The respondent relied on the s 58 documents (exhibit R1) and in particular on the internal review statement of reasons dated 10 November 2017. The Commissioner also adduced oral evidence from three police officers.

Senior Constable Robert Wylie

14. S/Const Wylie referred to his event report of 26 November 2014 (E 56446821, exhibit R1, p 26) in which he related that the applicant told him that about two years previously he had found turkey feathers standing with the pointed end into the ground at his shed door and the front door of his house. He also found footprints in the same areas that did not match any of the shoes of the occupants at that address. At about the same time he found a full packet of cigarettes on the property and a lighter that did not belong to them.

15. About five or six months before then, Mr Smith found a roof tile on his house pushed halfway up under the tiles above it. On 4 November 2014, he found that a tame kangaroo that frequented their front yard had been shot in the neck by a small calibre rifle or an arrow. He also believed that there had been someone on his roof, as there was a picture of his tattoo drawn onto the skylight of his bathroom, with his name. The tattoo is located in the applicant’s groin area and is not visible when he is clothed. He also said he had recently bought a load of water, and the day after it was placed in the tank it was gone, and no wet area or leaks could be identified.

16. The report said that Mr Smith was a cannabis user and was said by some to have mental health problems, but there was nothing recorded in the COPS database to that effect. He told the officer that he understood he may seem paranoid, but assured police that all of the above incidents could be verified by a third person.

17. In oral evidence at the hearing S/Const Wylie said that he had climbed up onto the roof of the applicant’s house and had seen some marks on the skylight, including the applicant’s nickname. He had also spoken to Mrs Smith, who confirmed some of her husband’s statements.

18. The witness also adopted his event report of 18 June 2015 (E 59586155, exhibit R1, p 28) in which he recorded that Mr Smith stated that unauthorized persons had again been on his property, and he had captured some of those intrusions on game cameras on his land, but the photographs had somehow been diverted to an alternative storage location by a person unknown. He also complained of unauthorized access to his computer by way of his Hotmail address. A person also named Paul Smith with a [New South Wales] address had apparently been using his Hotmail account to change passwords for his personal accounts. No money had been taken but police at the relevant suburb were asked to make enquiries.

19. The report stated that the applicant had suffered mental health problems in the past and was a self-confessed cannabis user of 30 years’ standing. He had displayed paranoia to police in the past, and on this occasion suspected that it was the police, or a private investigator in relation to his neck injury who had hacked his computer. The witness assured the tribunal, however, that the police do not hack computers.

20. The witness also referred to event report E 59586155 (exhibit R1, p 30), dated 26 June 2015 in which the witness stated that he had spoken to Mrs Robyn Smith, who said that he had always been paranoid and was getting worse. She agreed, however, that her husband had experienced some odd happenings with his emails and accounts, and she had sat in on a few conversations with him about his concerns. He had said that his systems were being hacked and he had been getting a message that his messages had been diverted to the telephone [number]. He had contacted Optus about those concerns and in their attempts to assist him they had passed on some partial information in an attempt to clarify what was possibly an administrative mix-up, they had given him the telephone number of a Paul Smith, of [location]. The report continued by saying that police were confident that he was telling the truth, “as he is a very reclusive type of person who is more concerned about the people coming onto his property and hacking into his phone and computer systems….SMITH has always been very honest with police in relation to his prior drug use and his admissions to being a cannabis user. He has also been overly honest in some other areas of his personal life that police did not need or want to know about. Police are confident that [he] has been truthful in this matter and equally confident that he is not a danger to Paul Smith of [location]”. Local police have had long-term dealings with Mr Smith and had no concerns about his being a potential danger to any person.” They remain of that view today.

21. The witness also referred to incident report E65713836, dated 31 October 2017 (exhibit R1, p 48), when the applicant’s elder son, Sam Smith, was arrested and charged with assault against his father following an incident in which he had been behaving in a loud, aggressive and offensive manner and had become angrier still because the applicant had refused to jump start his vehicle, which had stalled by the roadside. The applicant had told police he wanted no part of an AVO or charges against his son, but police did charge Sam Smith and obtained an AVO against him.

22. In cross-examination Mr Smith asked the witness who was the person who had made allegations about his mental health situation. The witness said he had no medical experience, but that police deal with many mental health issues. Sergeant Schaefer had been the source of the original report. S/Const Wylie had no concerns about the applicant being a danger to others. He had climbed up on the roof of the applicant’s house and observed marks on the skylight, and there had been discussion about his nickname being scrawled on it. He agreed that the applicant was “honest to a fault” and that he was “an open book”. In relation to a drug dealing report, he had come to the police station to correct a statement that 2.5 grams of cannabis had been found on his property. He admitted that the cannabis belonged to him but said it had only been 0.25 gram. Police had commented on his honesty.

Senior Constable Trevor McLeod

23. This witness adopted his event report E 63075979, 14 October 2016 (exhibit R1, p 36) in which he related that Mrs Smith had contacted police to ask them to get help for her son Samuel Smith to deal with his drug problem. Police had explained to her that they would not be doing that but offered some alternative ideas for seeking help for her son. While talking with police, Mrs Smith said her son was highly affected by alcohol and might have the key for her husband’s firearms safe. As a result of those concerns police attended at their address and spoke with Sam Smith, who seemed highly affected by drugs. They asked to see the firearms safe and any keys that might open it. Sam Smith showed them the safe, which was secured in a bedroom cupboard. Within the cupboard were a Crossman .177 pellet rifle and a Daisy lever action air rifle, which appeared to be functional and were not registered. The safe proved to be controlled by a combination lock and Sam Smith said he was unaware of the combination.

24. When talking to officers at Bulahdelah police station on 13 December 2016, the applicant explained that “the two ‘firearms’ in question were returned to him after initially being seized by police shortly after he first obtained a firearms licence a number of years ago. He stated that they were returned to him by police as they were identified as ‘non-guns’”. At the time no record had been located regarding that incident (exhibit R1, p 62).

25. In cross-examination the witness agreed that he regarded the applicant as honest. He acknowledged that the s 58 documents contained a receipt for the Daisy and Crossman airguns and that there could have been an element of confusion as four airguns had been impounded and two separate receipts had been issued (exhibit R1, pp12-13). Asked whether police would hand back unregistered guns, the officer replied that such a course of action would not be normal procedure. He agreed that they did appear to have been returned, but said he was unaware of the circumstances.

Senior Constable David Feeney

26. The witness acknowledged having prepared event report E 65605689 (exhibit R1, pp 41-43) on 21 January 2017 describing Sam Smith’s prior history of violence, stalking and intimidation against other members of his family. The arguments appeared to be escalating, and Sam was becoming physically violent and damaging property. Other family members had, however, been unwilling to provide formal statements in most instances. In this case, however, Robyn and the applicant’s youngest son Timothy Smith did inform police that during the prior incidents Sam had assaulted them, intimidated them and damaged property. Robyn said Sam had damaged numerous doors in the house and a guitar and had thrown items at her in the past. She had said she no longer wants Sam at the house because of the ongoing arguments. She had telephoned police on 21 January 2017 about her fears relating to Sam and also added that there were firearms at the house. She was not prepared to provide a statement, but did ask police to apply for an ADVO and have Sam removed from the house.

27. When police spoke with Sam he was extremely irritated and aggressive. He was yelling and swearing at his parents even with police standing by. When questioned about possible mental health problems, Sam said he had tried seeing doctors before but that had not worked and he would not be attending a hospital voluntarily. He also said he had no intention of harming himself.

28. In oral evidence the witness reiterated those points and explained that he had directed Sam to leave the property by reason of his agitated state. He also appeared to be under the influence of drugs. Police have the power to direct a person to leave a particular property for up to 2 hours. In response to questions from the applicant, the witness said he regarded the applicant as honest and as not representing a threat to public safety if he were to have a firearms licence.

Applicant’s evidence

29. At the hearing Mr Smith relied on a handwritten letter he had written, together with a bundle of other documents (exhibit A1), a consulting psychologist’s report dated 26 April 2018 (exhibit A2) and a statement filed on 4 October 2017 (exhibit R1,pp 155-157).

30. In the last-mentioned document he noted that his licence was first issued on 7 April 2006. Before that his firearms cabinet was inspected by Constable Schaeffer who agreed that the Daisy and Crosman airguns were inoperable. He had inherited them from his parents on purchasing the property. Both had been kept in the grandchildren’s toybox for over 30 years and they had been used for playing “cowboys and Indians” for three generations. They had been non-operational since 1979 or 1980. Both were previously available from Toy World mounted on pieces of cardboard and although he now realized they were classified as firearms, they are on the lower end of the scale. From the outset, therefore, he was advised by the local policeman, Constable Schaeffer, that registration was not required.

31. On 28 April 2006, he had been working for 90 days in succession in confined spaces with multiple toxic and dangerous chemicals (epoxy resin, epoxy flowcoate, fibreglass resin and associated hardeners) repairing a houseboat he had purchased. He had fallen asleep on the boat with all the chemical tins open and woke up quite distressed. He was able to return home and was admitted to hospital. He was questioned in his distressed state and agreed he must have taken something, which in fact he had not, but he had been in no state to make an informed decision about what was wrong with him. He had not been on drugs at the time, as further medical tests confirmed, nor did he have a drug habit.

29. After the ADT had reinstated his firearms licence on medical evidence, he was able to pick up two other air rifles, as well as the Daisy and the Crosman, from Forster police station on 8 May 2007. While paperwork was required for two of the airguns, the Daisy and the Crosman were carried out in plain sight as they had been deemed “non guns” and no documentation was required.

30. When on 6 December 2009 they altered the position of the gun cabinet, it was inspected by a constable known to him only as Angela, who sighted the two airguns. Once again he relied on the police to make a judgment on the airguns and their registration. No action was required by local police.

31. In June 2013 he had overlooked renewing his licence for the third year in a row as he had not received the usual renewal notices in the mail (he had later arranged to obtain a post office box to guard against any repetition). Constables Smith and Wylie removed all his guns except the two airguns, as they deemed them not to be firearms. Sometime in 2014 or 2015 there was an attempt to break into their gun cabinet, and Constable Wylie again attended and presumably again sighted the two airguns in the cabinet.

32. Both the Daisy and the Crosman had been kept in his gun cabinet. It was a tight fit with the firearms, and the guns needed to be stacked in a certain order to make them fit. He was seriously injured on 3 October 2016 in a motorcycle accident and was unable personally to return the guns to the gun cabinet. His riding colleagues tried their best with instructions over the telephone and locked up the house. He had been in hospital for 2 months and was unable to update his place of storage records because of the time he was incapacitated.

33. He believed he had acted with the guidance of local police for several years by not registering the airguns. If they had indicated to him that registration was required, he would have registered them at once. He had pleaded guilty to the charges in relation to the airguns but the magistrate had recognized his need for a gun licence and indicated that he wanted him to keep it.

34. In relation to the incident on 13-14 October 2016, Constable McLeod had said that the BB guns appeared to be fully functioning air rifles, when in fact they had been unable to shoot in nearly 38 years. He had asked the police to have them tested to prove they were inoperative but was told that operating procedures did not permit it.

35. He acknowledged the seriousness and responsibility of the privilege of holding a firearms licence. For health reasons he could no longer perform many farming activities, but shooting was one that he could still manage. At times on the property a firearm was required in order to humanely put down sick or injured cattle and control pests. In March or April he had an elderly fully grown cow that was dying. He asked the police to attend but they declined, and he was unable to get anyone else to shoot it and could not afford a veterinarian. He therefore basically had to club it to death with a sledgehammer, a very distressing thing.

36. Again, on 11 September 2017, a sick adult cow had to be put down. The police attended but declined to shoot the cow and tried to organize for a local to come and do so in about five or six hours. Unfortunately the crows started to pick at the cow’s eyes and he could not bear to let it continue. He had to kill that poor old cow with a pickaxe. That was a very distressing task to have to perform and it had affected him deeply. Another incident occurred two weeks previously, when dogs had attacked his cows and killed at least one calf.

37. He was one of the founding members of the Myall Lakes Wild Dog Eradication Program in conjunction with Landcare, Forestry, National Parks and fellow landholders. Its results in his immediate area had been astounding.

38. On many occasions the police had sighted, or had in their possession, the two airguns. There was ample opportunity to advise him to get them registered and he feels somewhat let down by their incorrect advice, which he had taken as “gospel”. He really needed to be able humanely to kill sick and injured cattle and humanely dispose of pests. He had grown up with firearms since the age of 4 or 5 and was a safe and responsible gun user. He really needed at least one rifle on the property.

39. In exhibit A1 the applicant repeated some of those points and added that when ‘Constable Angela’ had inspected his firearms cabinet, she had advised him maybe to store the pellet guns in the cabinet just in case. As regards his domestic circumstances, he said inter alia that he and his son Sam interact and get on very well. He had recently volunteered, along with Sam, for 5 months at Delhuntie Park, a bush camp for troubled youth. Sam had been appointed to engage in full-time work there. Sam had been undergoing drug and alcohol counselling for nearly 10 months now. Sam had never had access to the applicant’s guns or his gun cabinet, which is secured by a combination only. In any event his guns could be kept at his brother’s nearby property, where there was very secure safe storage.

40. As regards the possession of unregistered firearms, he realized that although they were inoperable, in hindsight he should have disposed of them or had them registered. He had inherited them with the house he lived in. It was only because of his serious accident in the front yard that he was unable to pack the guns away. His two guests had tried their best, but in order to fit them all in, they must be packed in a certain order.

41. As regards the 18 June 2015 report, his Internet, Facebook, EBay, Google, Hotmail and PayPal accounts had all been hacked because he had all his passwords sent back to a central email address. Once that was hacked, it was a simple matter to hack his other accounts. Further, he had previously installed four game cameras on the property, but two of them were stolen and two were vandalized.

42. In oral evidence Mr Smith reiterated most of those points and added inter alia that while working as a builder and carpenter in 2009 he had been injured in a workplace accident. Subsequently he had used cannabis medicinally because it was the only thing that could alleviate the pain and spasms in his shoulder. He had mixed it with 80 percent tobacco in order to wean himself off it, and had not used it for 2 years for “recreational” purposes.

43. The document on page 14 of exhibit R1 was the police receipt for the Daisy and Crosman airguns. It had not been found at the time of the Local Court proceedings. They had been returned to him on the basis that there were “non guns”. They had never worked for the whole of the time the family had owned the property. He had relied on the police advice that they did not require registration. They used to be sold in toy shops He would have stored them in his firearms safe, but did not do so because of the motorcycle accident when the throttle of a Bultaco he had imported from Canada jammed. The fellows who were left behind at the house tried to store his guns. The magistrate at the Local Court hearing was concerned that the receipt on page 14 of exhibit R1 could not be found, as he wanted the applicant to keep his licence. In hindsight he had felt that he should have got rid of the two airguns that had been returned to him, but he had relied on the “non guns” assurance police had given him. From then on he had kept them in his firearms cabinet.

44. Referring to the reference to mental health concerns in the internal review reasons (exhibit R1, p 170) he said that he was not the subject of any mental concerns and they had been no reports of self-harm by him. But he had voiced concerns about his son, and he thought the reports had become mixed up. He now has a psychologist’s report that showed he had no mental health issues.

45. One of the grounds raised in the internal review was his domestic circumstances. At present he is living with his son Sam. His wife is taking care of her mother and is in the process of getting her into a nursing home. Robyn and his younger son Tim are currently renting a house in Newcastle as Tim is enrolled in a selective Newcastle performing arts school. Between December and February Robyn will be moving back home.

46. He had brought Sam back from a dark place. Sam had volunteered for a youth camp and was offered employment there, and is now working five or six days a week. His acute anxiety problem can make him seem as if he is on drugs. He is currently buying a car and really trying. He is a million miles away from where he was a year ago. Sam had never had access to his firearms, but he could store his guns at his brother’s property which is a kilometre away.

47. He is currently running cattle on the property. Formerly he had fruit trees, but the farm had suffered since his motorcycle accident. There is no longer any money in fruit trees and he had put up a sign giving permission to anyone to come onto the property and pick some for themselves. He had found the tame kangaroo shot only 20 m from his back door. Two of his game cameras had been destroyed. He thought that possibly people who had come onto the property to take fruit had done the things he had complained of. He believed that if the receipt (exhibit R1, p 14) had been found before the Local Court proceedings, the case would have been dismissed. When Robyn had contacted police about Sam’s conduct, she had mentioned that there were guns on the property because otherwise the police would not come to the property over a domestic dispute.

48. His parents had bought the property in 1980 and he had been a primary producer since 1997. He had previously held older firearms licences, and had obtained the recent one in 2006. Between 1997 and 2006 he did not keep a gun. He relied on neighbours and his brother to do any necessary shooting, but his brother is now working part-time. He knew that airguns had to be registered but had found them only in 2006 in cupboards on the property. He had applied for a licence for the other two airguns but had relied on the police assurance that registration was not required for the inoperable ones. He should have looked into it further, and he was at fault for relying on that assurance.

49. As regards the safe storage incident on 3 October 2016, the gun safe had been open with the two airguns next to it. It was not locked, but he was only 10 m away while they were all packing up. The cattle grid that caused his accident was 20 m away from the front door. He had been showing his militaria collection to two friends and had then started up the Bultaco motorcycle. After his fall his wife had made arrangements with his friends to lock the safe, which they did before they left. He did not think Sam had been living there at the time. Sam had never had access to his guns and he was very secretive about the keypad code for his category B cabinet.

50. He admitted that he had a poor driving record, but added that he had been driving 1500 km a week. His delusions about masked men on the property (exhibit R1, p 83) had been drug induced as he was in a bad state from inhaling the chemicals on the houseboat for 90 successive days. It had been put to him that he must have been using “ice”, and he had in fact been drinking iced tea, and in his confused state had said “Well I must have”. He admitted setting fire to some long grass with petrol, and had told police he had used a slug gun to drive the masked men away, but as a joke. From time to time troops from the nearby air force base use his property, with his permission, for exercises. The tattoo of which a person unknown had drawn could only have been seen by his wife or if a person look through the skylight above the bathroom.

51. In relation to the event report about a possible cannabis sale (exhibit R1, p.20) he said he had had a “run-in” with a friend and as a result had been falsely “dobbed in” to the ATO, Centrelink and Crimestoppers. Police had reported that they had found 2.5 grams of cannabis on the property and had implied that they were investigating a possible sale by Sam. He had consequently volunteered the information that the cannabis belonged to him but it was actually 0.25 gram. Sam was not living at home at the time, as he was in the process of moving to Melbourne.

52. He himself had used marijuana “recreationally” for perhaps 30 years, but on and off. He had been using a mixture of only 20 percent pot in order to wean himself off it. He is not currently using marijuana, but might in the future need to use it for medicinal purposes.

53. The applicant now has good relations with his son Sam and is proud of his efforts. As Sam has a severe anxiety problem and can seem to be on drugs, he had doubted Sam’s denials. Sam had never used drugs at home and is currently working six days a week. His problem had begun with using prescription drugs for his anxiety, and was using drugs at the time of the AVO. Mr Smith did not know if Sam had actually been addicted but thought he was just a user. He had suggested on 31 October 2017 that Sam’s behaviour might have resulted from his taking synthetic heroin tablets while in custody, but he had said that in order to try to get medical help for him.

54. The applicant’s last argument with Sam had been at the start of this year, and it had proved to be a watershed. Sam is now working as a carpenter with a plasterer 5 or 6 days a week and has been seeing Greg Aylward, a drug and alcohol counsellor, twice a week formerly, and now about every two weeks. In relation to his anxiety problem, he is seeing Dr Marley, who does not prescribe medications for him, saying that regular work would be better for him. The applicant does not have any psychological evidence in relation to Sam.

55. The applicant tendered a detailed psychological assessment report relating to himself also dated 26 April 2018 from Mr Michael Bazaley, a consulting psychologist (exhibit A2). The tests administered showed that the applicant’s clinical and risk factors indicated a low risk of future violence or antisocial behaviour. His levels of depression, anxiety and stress are in the normal range. He is reporting a clinically stable mental health state and his mental state for depression, anxiety and stress is reflective of a normal person’s mental state and would not affect his present state of mind in holding a firearms permit. He described no significant problems in the following areas: unusual thoughts or peculiar experiences; suicidal ideation; problems with empathy; undue suspiciousness, anger or hostility; unusually elevated mood or heightened activity; but some difficulties with physical health and physical function since his accident.

56. The report concluded “The main finding within this report is that Mr Smith’s present state of mind, upon presentation within the two sessions, is psychologically sound, and that he appears to have a proper and fit understanding of the requirements in owning, using and storing firearms”.

57. The applicant tendered a letter from Dr Chris Marley dated 27 July 2018 (part exhibit A1) stating “Mr Paul Smith has never attended here for episodes of self-harm. He has been a patient of mine for approximately 30 years”.

58. Also tendered were some materials relating to Sam Smith, including a letter from Mr Greg Aylward, community drug and alcohol counsellor at Hunter New England Local Health District, dated 1 June 2018, confirming that Sam Smith had attended at the Raymond Terrace Community Health Centre for drug and alcohol assessment on 2 March 2018. The outcome of that assessment indicated that he had a history of drug abuse. A comprehensive case plan was developed, incorporating strategies for addressing drug and alcohol abuse. Sam had also reported his concerns about his mental health, in particular his episodes of anxiety and depression, paranoid thoughts and associated anger problems. Sam had contracted to attend ongoing individual counselling on a weekly basis. His case plan included discussion and education through counselling, as well as structured education sessions. Those sessions covered alcohol and drug education, relapse prevention and anger management skills.

59. A letter dated 6 June 2018 from Mr Rob Kent, manager of Delhuntie Youth Care, a non-profit youth and family care centre that has been in operation for over 40 years, stated that Sam Smith had been volunteering his time at their Bulahdelah centre for the past 6 weeks. He had been helping them to build their on-site accommodation so that what they could do longer term rehabilitation, respite care and crisis care. He had shown a strong work ethic and skills and had become a stronger, reliable young man who has been educated on better life choices. He had excelled in his role with them, and to reward him they had decided to start paying him for his valuable help.

Respondent’s submissions

63. At the hearing Mr Zoppo adopted the reasons given in the internal review statement dated 10 November 2017, saying that little had changed since then, except that the good behaviour bond had expired and was consequently no longer an issue, but the applicant’s domestic circumstances were still a concern. The reviewing officer noted that police had been called on four occasions regarding concerns raised about drug use, physical violence, verbal abuse, threats, and attempt at self-harm and aggressive behaviour by Sam Smith. On 21 January 2017, Mrs Robyn Smith had contacted police during a physical fight between her husband and Sam, pointing out that there were firearms at the location. While in their presence, Sam was extremely irritated and aggressive. On 31 October 2017 police received multiple calls from the public regarding Sam’s abusive and violent behaviour towards his father. Again, when police arrived at the scene, he continued to abuse his father in their presence. Later that day, after Sam was arrested for assault and placed on strict bail conditions, Mrs Smith called and said Sam was punching his father and attempting to run into traffic. When police arrived they handcuffed Sam, both for his safety and the applicant’s.

64. The reasons noted that the applicant’s son was still recorded as residing at his address. Because of the concerns raised above and the recency of the information, which suggested ongoing drug abuse and aggressive and violent behaviour, the reviewing officer was satisfied that the applicant might not be able to maintain continuous and responsible control over firearms because of his domestic circumstances.

65. The other ground on which the internal review relied was the public interest. The first issue in that regard was the applicant’s possession of two unregistered air rifles. The legislation dictated that the airguns, regardless of their functionality, had to be registered and that possession of an unregistered firearm is an offence. In relation to his claim that he had relied on police advice that the airguns did not require registration, the reviewing officer pointed out that it was the individual’s obligation to ensure that he or she complied with legislation. Ignorance of the Act’s requirements was not an excuse.

66. The second point in relation to public interest was his failure safely to store the unregistered airguns. The reviewing officer acknowledged that the airguns had been erroneously returned to the applicant by police but pointed out there was no record of the Daisy or Crosman airguns in relation to all police inspections and incidents, nor was there any information setting out the advice the applicant alleged police had given. The applicant had expressed the opinion that unregistered and unsafely stored airguns were at the lower end of the scale in terms of seriousness, but the tribunal had pointed out that an airgun could equally be used to threaten a person who is not knowledgeable about firearms.

67. The third public interest point related to Sam Smith. Given his drug and mental health issues and episodes of abusive and aggressive behaviour that resulted in his being currently subject to an AVO for his father’s protection, the officer was satisfied that it would not be in the public interest to be at any address where Sam Smith resides or frequents.

63. The fourth point relevant to the public interest related to the applicant’s conduct, including the continued suggestion of mental health concerns and a lengthy history of cannabis use. The likelihood of risk was to be assessed by reference to prior conduct.

64. On 2 November 2017, the applicant had contacted the mental health facility, which had conducted an assessment of his son on the previous day. Because of the nature of that call, the mental health facility contacted police to check on the applicant’s welfare and reported past incidents of self-harm by him. When police attended at the applicant’s address, he advised them that he was erratic and apprehensive while on the phone, as his son was in the house at the time of the call and the call was being made without his knowledge. Police reported that they held no concerns regarding Mr Paul Smith’s health on that day. At no stage before 2 November 2017 had any communications about self-harm incidents been received by police. In the context of firearm possession, a person’s mental health is highly relevant to public safety. The legislation prohibits the issue of a firearms licence to a person who has previously attempted suicide or caused a self-inflicted injury or is of unsound mind.

65. The possibility of a long term drug habit or possible mental health disorder, or both, in the context of firearms possession could not be ignored, the reviewing officer said: “Therefore, without the benefit of expert advice from a treating psychologist or psychiatrist to the contrary, I cannot be satisfied that your ability to maintain continuous and responsible control over firearms is not impaired”. Together with the other three points mentioned, that issue led to the conclusion that the public would not consider it appropriate that the applicant’s authority to possess and use firearms be reinstated.

66. Mr Zoppo added that as 12 months ago Sam Smith was an addict with mental health problems who used violence, even against his father, it could not be said that there was “virtually no risk” of his being a danger to public safety. The police had been positive about the applicant, but there was still the safe storage problem caused by his going out riding without locking his firearms cabinet. It was not clear when the safe had been secured. The applicant had said police had told him that they regarded the Daisy and the Crosman as “non guns”, but even before then he had not registered them. Blaming the police was not acceptable. The psychological report on the applicant was positive, but not all the factual assertions in it were correct, as there were two versions in relation to his drug use.

Consideration

72. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act), the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

73. The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (No. 2) (s 30) and the Act, including the Commissioner’s revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

74. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is “conditional on the overriding need to ensure public safety”. Consistently with that approach, s 11(4) relevantly states that a licence must not be issued if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s domestic circumstances, any previous attempt at self-harm or being of unsound mind.

75. Section 24(2)(a) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind, while s 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 19(a) of the Firearms Regulation 2006 (now cl 20 of the Firearms Regulation 2017) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

76. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).

77. Under s 63 of the ADR Act, the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

78. The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (No. 2) (s 30) and the Act, including the Commissioner’s revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

79. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is “conditional on the overriding need to ensure public safety”. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(5A) further provides that a licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. The Commissioner may also refuse to issue a licence if the Commissioner considers the issue of the licence would be contrary to the public interest: s 11(7).

80. Section 24(2)(a) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind, while s 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Firearms Regulation 2017 provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

81. As was noted above, the standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).

82. In opposing Mr Paul Smith’s application to have his license reinstated, the respondent relies on the applicant’s domestic circumstances within the meaning of s 11(4)(a), specifically the fact that his elder son, Sam Smith, a young man with a troubled past, is residing with him at the property, and on the public interest ground within the meaning of cl 20. It is not submitted that the applicant himself is “of unsound mind” within the meaning of s 11(4)(c), but the respondent does raise some mental health concerns in support of his public interest submissions pursuant to cl 20. Nor is it contended that the applicant himself is not “a fit and proper person” to have possession of firearms within the meaning of s 11(3)(a).

83. At the outset I should note that all the police witnesses averred that the applicant Paul Smith is an honest man who is truthful even when it is not in his interests to be so.

The applicant’s domestic circumstances – Sam Smith

84. It is not disputed that the applicant’s elder son, Sam Smith, over a period of several years displayed violent and aggressive tendencies, including towards his parents, and was repeatedly found to be under the influence of prohibited drugs. The earliest incident related to a police attendance at the applicant’s address in relation to allegations of cannabis being distributed from the premises. With the applicant’s permission, police searched the house and found a bag containing 0.25 g of cannabis (which at the time they erroneously estimated at 2.5 g). Becoming aware that police were investigating the possibility that his son was the person involved, the applicant came forward to correct the incorrect estimate and said that the cannabis belonged to him, not to Sam, and that he had been using cannabis for many years. He was given a cannabis caution, but police suspected that he had made the admission in order to protect his son.

85. On 13 October 2016, Mrs Smith called police expressing concerns about Sam and his use of drugs at the family home, pointing out that there were firearms on the premises and that Sam might have a key to the cabinet. At that time the applicant was in hospital following his motorcycle accident. Senior Constable McLeod said that when police arrived they noted that Sam appeared drug-affected. They asked to see the firearms safe and any keys to open it. Sam showed police the safe, and pointed out that it was secured by a combination lock and said he did not know the combination. At that time police noted the two airguns in the cupboard that were leaning on the safe, and as they were unregistered, the two firearms charges were laid against Mr Paul Smith.

86. A domestic dispute between Sam and his father led to police attending again at the applicant’s premises, on 21 January 2017. Senior Constable Feeney said they were told that there had been regular ongoing domestic disputes between Sam and other family members, and those disputes had escalated. During prior incidents Sam had assaulted family members, intimidated them and damaged property. When police spoke with Sam he was very aggressive and irritable and when asked about his mental condition said he would not voluntarily seek hospital help as the doctors he had seen were of no assistance. Out of concerns for the safety of family members, police impounded six registered firearms located at those premises at the time.

87. Police were called to the Tea Gardens, area where Sam’s vehicle had broken down, on 31 October 2017 in response to concerns raised by members of the public about Sam’s abusive conduct towards the applicant. His abusive behaviour continued in the presence of police, and as a result he was charged and made subject to a provisional apprehended violence order (AVO). Later that day Sam was charged and made subject to strict bail conditions protecting his father.

88. The applicant collected Sam on his release from custody and began driving home. On the way Sam became abusive towards his father and threatened self-harm. He reportedly smashed the rear vision mirror and while his father was driving pulled on the handbrake lever. When the car stopped, Sam ran up a nearby embankment and attempted to run into traffic. Later he returned to the vehicle and punched his father on the jaw. On arrival police handcuffed Sam for the protection of himself and his father, then conveyed him to the Mater Hospital where a specialist practitioner determined that he was not mentally disordered but was suffering from prohibited drug-related issues. Senior Constable Wylie explained that on 1 November 2017 Sam was made subject to a confirmed AVO, which was current until 31 October 2018 and listed the applicant as the person requiring protection.

89. The applicant did not dispute that narrative, but submitted that an argument Sam had with him early this year had proved to be a “watershed” and that Sam was now “a million miles” from where he was a year ago. They now get on well together. Mr Kent, manager of Delhuntie Youth Care, confirmed in June 2018 that Sam had been volunteering his time at their Bulahdelah Centre for six weeks, helping them to build their on-site accommodation so that they could do longer-term rehabilitation, respite care and crisis care. He had shown a strong work ethic and skills and had become a stronger, reliable young man. His excellence in the role given to him had led the centre to reward him by deciding to start paying him for his help (part exhibit A1).

90. His drug and alcohol counsellor at Hunter New England Local Health District, Mr Greg Aylward, outlined a comprehensive case plan that was developed to assist Sam, covering alcohol and drug education, relapse prevention, addiction and anger management skills (part exhibit A1). He was receiving regular counselling.

91. For his acute anxiety problem, which can give the impression that he is drug-affected when he is not, he is being treated by Dr Chris Marley. Dr Marley is not prescribing any medication for him but advises him that the best therapy for his condition is regular work, which he is now performing, being employed full-time by a plasterer as a carpenter.

92. That unchallenged evidence provides ample ground for concluding that Sam has indeed come back “from a dark place”, as his father put it, and has made great progress in the course of 2018. There is, however, no expert psychological or psychiatric evidence about his present mental state, the possibilities of relapse and the likely course of his future conduct. In those circumstances, it seems too soon yet to find that his troubled period has permanently been brought to a close. A history of confrontation and violence is cause for concern that there would be an increased risk to public safety if firearms were available (Mewburn v Commissioner of Police, New South Wales Police Force [2009] NSWADT 24, [43]). Even though it is not disputed that Sam has never had access to firearms, some concerns must remain so long as he remains in residence at the family home where firearms are kept.

93. That conclusion does not, however, determine the issue under s 11(4). First, the power to revoke in s 24(2) is discretionary. Secondly, domestic circumstances require licence refusal, or activate the power to revoke, only if there is “reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms” by reason of those domestic circumstances.

94. In this case, the applicant has stressed that he would be more than willing to keep his firearms at the property of his brother, Mr Peter Smith, which is adjacent to his own, when they were not required to be available for such purposes as humanely destroying sick or injured stock or controlling wild dogs and other pests. Mr Peter Smith has the necessary licences as well as capacious and very secure safe storage facilities. The applicant has on more than one occasion stored firearms there with full police approval. The applicant would not regard such an arrangement as ideal, but he is anxious to avoid any repetition of the incidents where he was unable to obtain the assistance of persons with firearms and had to kill sick or injured cattle with a sledgehammer or a pickaxe because they were in extremis and the crows were starting to pick at their eyes.

95. Such an arrangement would ensure that Mr Paul Smith would be able personally to exercise continuous and responsible control over his firearms, notwithstanding that Sam was still residing at the family home. I therefore conclude that, subject to the firearms being kept in safe storage on Mr Peter Smith’s property, the applicant’s current domestic circumstances do not warrant exercising the discretion to revoke adversely to the applicant.

The public interest ground

96. As was pointed out above, the respondent did not submit that the applicant was not a fit and proper person to hold a firearms licence. His second ground for revoking the applicant’s license, therefore, was that it was not in the public interest for the applicant to continue to hold it, within the meaning of ss 11(7), 24(2)(e) and cl 20. The phrase “public interest” is not defined in the Act.

97. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

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

98. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

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

99. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

100. On the public interest issue, the respondent relies on four matters. The first is the incident involving the applicant’s possession of two unregistered airguns. Even if inoperable, airguns are deemed by s 4 of the Act to be firearms and therefore require registration. While the fact that an airgun is incapable of discharging a slug is irrelevant to liability for unauthorized possession under s 7A, it has a bearing on the seriousness of the applicant’s contravention, and that is material to the weight to be given to it in relation to the public interest question.

99. It is not disputed that police sighted, or had in their possession, the Daisy and the Crosman on a number of occasions, knowing them to be unregistered but taking no action until S/Const McLeod’s visit on 14 October 2016:

• Before the applicant’s license was issued to him in April 2006, Const (probably Sgt) Schaefer inspected his firearms cabinet, saw the two airguns, agreed that they were non-functional and did not require registration;

• After prolonged inhalation of toxic fumes in a confined space had caused the applicant to suffer delusions on 28 April 2006, his firearms were impounded and his licence was revoked, but was reinstated by the Administrative Decisions Tribunal on hearing the psychological evidence of Mr R F Peters. He was then able to collect his guns from Forster police station and was permitted to take the two airguns away without documentation as they were deemed to be “non guns”. S/Const McLeod confirmed that the airguns had been returned to the applicant, but added that he was not aware of the circumstances.

• On 6 December 2009, when he was moving his gun cabinet to a new location which had to be inspected by police, a constable known to the applicant only as Angela observed the airguns and apparently saw no reason to take further action.

• In June 2013 his guns were removed when he had forgotten to renew his licence because he had not received a renewal notice. Constables Smith and Wylie impounded his firearms but left the airguns on the ground that they were not firearms.

• In 2014 or 2015 police inspected his safe storage arrangements after there had been an attempted break-in. S/Const Wylie saw the airguns but took no action.

102. In the course of his visit to the property on 13 October 2016 following Mrs Smith’s telephone call about Sam’s drug usage, S/Const McLeod saw the two airguns and took the view that they were fully functional. From outward appearances as shown in the contemporaneous photographs (exhibit R1, pp 39-40) the Crosman showed no obvious signs of dilapidation, but in one of the pictures of the Daisy, its action lever appears to be disengaged. At all events, Mr Smith was at all times adamant that neither gun had been in working order for 38 years. He pressed police to test them to prove that they were inoperable but was informed that established procedures did not permit it. Further, four different police officers who sighted the guns on at least five occasions also took the view that they were inoperable, and on one occasion police returned them to the applicant while knowing them to be unregistered, as the internal review acknowledged (exhibit R1, p 169). I am satisfied that both airguns were inoperable at all relevant times, although, I repeat, that fact is irrelevant to liability.

103. The second matter on which the respondent relied on the public interest issue was the applicant’s failure safely to store the unregistered airguns (exhibit R1, p 169). The relevant facts are largely the same as for the possession issue and point to the same conclusion. The evidence establishes that the applicant relied on mistaken law enforcement advice, though the mistake was rather understandable. Nevertheless, he remained personally responsible for informing himself correctly about his legal obligations. Ignorance of the Act’s requirements is no excuse: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [27]. He now acknowledges that he should have disposed of the airguns at an early stage.

104. The reviewing officer (whose opinions were adopted by the respondent at the hearing) expressed concern at the applicant’s argument that the two breaches lay at the lower end of the scale in terms of seriousness. The applicant pointed out that airguns were formerly sold at Toy World, mounted on a cardboard sheet, and that that the two inoperable guns in question had been kept in the grandchildren’s toybox for 38 years. Nevertheless, the Act of New South Wales treats airguns as firearms, and that is the law that courts and tribunals apply.

105. It appears, however, that the Local Court saw the applicant’s offences as lying towards the lower end of the scale of seriousness, as it did not record a conviction and imposed only a good behaviour bond for 12 months.

106. The third matter raised in connexion with the public interest was Sam Smith’s record of drug abuse, and of violent, aggressive behaviour towards the applicant and others. Although the evidence shows that Sam has made great strides towards law-abiding normalcy this year, I have found that his possible future behaviour is still a matter of concern in relation to s 11(4). The same is true under the heading of public interest, although here again the problem could be solved by requiring the applicant to keep his firearms in Mr Peter Smith’s safe storage in the adjacent property.

107. The fourth matter relied on in relation to public interest was described by the reviewing officer as “your conduct including the continued suggestion of mental health concerns, and a lengthy history of cannabis use”.

108. The delusions and other apparently psychotic symptoms that the applicant experienced in April 2006 following prolonged exposure to toxic chemicals in a confined space were explained by the consultant psychologist, Mr RF Peters. The respondent presumably accepts that explanation, as that episode was not relied on by the internal review.

109. The internal review refers, however, to some other reports of self-harm incidents by the applicant. On 2 November 2017 he contacted the mental health facility that had assessed his son on the previous day. That call led the facility to contact police to check on his welfare. When police attended at the applicant’s property, he explained that he had been erratic and apprehensive while making the telephone call as his son was in the house at the time and the applicant was making the call without his knowledge. Police reported that they held no concerns regarding his mental health on that day and that at no time before 2 November 2017 had any self-harm incidents been reported to them.

110. The applicant thus explained his apprehensive tone in his call to the mental health facility by his concern at Sam’s possible reaction if he were to overhear the call. He also thought the mental health staff might have confused him with his son, whom they had assessed the previous day, as they were dealing with two men named Smith living at the same address.

111. Further, Dr Chris Marley’s letter of 27 July 2018 states that the applicant has been his patient for 30 years and he has not been aware of any episodes of self-harm during that period.

112. The respondent also referred to the incidents in 2014 when the applicant complained to police about a number of incidents, including the shooting of a tame kangaroo in his yard, his finding of a full packet of cigarettes on the property and footprints not matching those of any of the residence, and his report that someone had been on his roof and drawn a picture of his normally concealed tattoo with his nickname on it on the skylight above his bathroom. When responding to the last-mentioned complaint, S/Const McLeod climbed onto the roof and did in fact observe some marks on the skylight, including the applicant’s nickname.

113. Also relevant is the applicant’s unchallenged evidence that of the four game cameras he had installed on the property, two were stolen and two were vandalized. Given the applicant’s reputation for veracity, the probabilities are that these were real occurrences and not merely paranoid imaginings. Intrusions by ill-intentioned trespassers onto farming or grazing properties are a known phenomenon of life on the land

114. The internal review concluded on the mental health point that “without the benefit of expert advice from a treating psychologist or psychiatrist to the contrary, I cannot be satisfied that your ability to maintain continuous and responsible control over firearms is not impaired” (exhibit R1, p 170). Such expert advice is now before the tribunal, however.

115. The detailed consultant psychology report of Mr Michael Bazaley dated 26 April 2018 (exhibit A2) concluded that Mr Smith’s mental state for depression, anxiety and stress reflected a normal person’s mental state and would not affect his present state of mind in holding a firearms permit. His mental state was psychologically sound and he appeared to have a proper and fit understanding of the requirements of owning, using and storing firearms.

116. Also relevant is the repeatedly expressed view of police officers who know the applicant that he does not represent a danger to the safety of any person. He has no record of violence or threats of violence. Nor is there any report of his actually using firearms in an improper, unsafe or careless manner, or in such a manner as to suggest a risk of self-harm, and he has been using firearms since the age of five. I conclude that his mental state provides no cause for concern in relation to his ability to control firearms in a safe manner.

117. The respondent also refers to the applicant’s history of cannabis use, though it is not clear whether that is intended to reflect on his mental state. At all events the applicant acknowledges that he “occasionally” used marijuana for “recreational” purposes for some 30 years, but says that he has not done so for about two years. He also admits to using a 20 percent mixture of cannabis with tobacco to control pain and spasms caused by his shoulder injury because he found that nothing else was effective. There is no evidence to suggest that these practices have impaired his mental state in such a way as to weaken his control over firearms, but when taken with his poor driving record, they suggest a casual attitude towards legal regulation and do not reflect well on him.

118. As against that is the fact that for a farmer or grazier in rural New South Wales, long arms are a practical necessity, including for the humane destruction of sick or injured stock and the control of wild dogs and other pests. The applicant’s evidence included vivid descriptions of distressing incidents of that type caused by his current lack of access to firearms. As over two centuries of history have shown, without the availability of firearms on the land, New South Wales could scarcely have had a primary industry. That consideration weighs in the applicant’s favour on the public interest issue.

119. In relation to the Act’s emphasis on the overriding need to ensure public safety, reference is usually made to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28], in which 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 not pose any risk to public safety. Indeed, Her Honour could not have been totally satisfied of that, as the applicant had been convicted of an offence of violence and had been the subject of an apprehended violence order. Some other cases to a similar effect are reviewed in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, [72] – [79].

120. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, for example, Montgomery JM when considering the question of public safety stated that, “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”: [32].

121. Public safety is the primary focus of the public interest issue and of the Act generally. In light of all the evidence and the relevant authorities, I find that restoring the applicant’s category ABC firearms licence, subject to the condition set out below, would not create a danger to public safety or be contrary to the public interest.

Orders

1. The decision under review is set aside.

2. The applicant’s category ABC firearms licence is to be reissued to him subject to the condition that except when required for use on the applicant’s property, his firearms should be kept in approved safe storage on the property of the applicant’s brother Mr Peter Smith, or at such other location as the Commissioner shall approve.

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

Registrar

Decision last updated: 05 December 2018