TITTEL and Commissioner of Police

[2008] WASAT 241

TITTEL and COMMISSIONER OF POLICE [2008] WASAT 241

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 241
Act:	FIREARMS ACT 1973 (WA)
Case No:	CC:514/2008	Heard:	25 AUGUST 2008
Coram:	MR T CAREY (MEMBER)	Delivered:	16/10/08
No of pages:	15	Judgment Part:	1 of 1
Result:	Application successful
Category:	B
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Parties:	JOHAN CHRISTIAN TITTEL COMMISSIONER OF POLICE
Catchwords:	Firearms licence under Firearms Act 1973 (WA) Refusal of licence based on series of allegations Firearms held on curio licence, later collector's licence Securing firearms Notifying change of address Allegations of lack of candour, poor memory and lack of consideration of firearms laws Whether issue of licence not desirable in the interests of public safety Whether the applicant is a fit and proper person
Legislation:	Firearms Act 1973 (WA), s 11A, s 22(2), s 30B
Case References:	Nil
Orders	1. The decision of the respondent's delegate made 26 October 2007 is set aside.,2. Subject to the payment of any applicable fee, the respondent shall grant the applicant a firearm licence for a Feg handgun air or gas, .177 calibre, serial number 07589.
Summary	The applicant applied for the issue of a firearm licence to allow him to use an air pistol for use as a member of an approved sporting club.,In November 2007, the applicant was informed that his application had been refused.  A number of reasons for the refusal were given, including a past failure to correctly secure two firearms held on a collector's licence, a failure to recall owning the same firearms, purchasing a firearm without licensing it beforehand and a lack of consideration for firearms laws.  Some further matters were relied upon by the respondent in opposing the application to the Tribunal for review of its decision.,The Tribunal considered each allegation upon which relevance was placed by the respondent, either in its original refusal or on the review.  Its findings, in summary, were:,1) Little significance was to be attached to the unsecured storage of two curio firearms at the applicant's rural property, because the events concerned occurred about 20 years ago, the firearms were very old and disabled, were display pieces and their storage reflected a different time in terms of the way in which firearms were regarded.,2) The evidence did not support an allegation that the applicant left the curio pieces with an unlicensed person (his former wife).,3) Although the allegation of a failure to notify police of all the applicant's changes of address was made out, the relevant events occurred some 24 and 19 years ago, the applicant was acting upon a misapprehension regarding his obligation concerning the curio firearms, and in relation to his move to Queensland, the applicant registered or disposed of his firearms legally shortly after moving there in accordance with (or in excess of) the obligations then applying in that State.,4) The alleged failure to license one of the curio pieces amounted to no more than administrative oversight.,5) An alleged lack of candour on the part of the applicant on two separate occasions was found unsubstantiated.  Whilst the Tribunal did comment adversely on the behaviour of the applicant at the Firearms Inquiry Branch when discussing his firearms history with police, it found that the evidence did not indicate an endemic personality trait which should disqualify him.,6) Of a number of claimed failures of memory by the applicant, none was found to be sufficiently serious to have the result that he be denied the licence, and some did not, on close analysis, constitute such a failure.,7) The general allegation of inadequate consideration by the applicant for the firearms laws was discounted by the failure to substantiate a number of specific allegations and facts in mitigation of the others.  The applicant had sufficiently addressed his past inattention to his obligations as a firearm licensee.,The Tribunal concluded that the allegations relied upon were not sufficient to sustain the decision of the respondent and the decision was set aside.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : TITTEL and COMMISSIONER OF POLICE [2008] WASAT 241 MEMBER : MR T CAREY (MEMBER) HEARD : 25 AUGUST 2008 DELIVERED : 16 OCTOBER 2008 FILE NO/S : CC 514 of 2008 BETWEEN : JOHAN CHRISTIAN TITTEL

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms licence under Firearms Act 1973 (WA) - Refusal of licence based on series of allegations - Firearms held on curio licence, later collector's licence - Securing firearms - Notifying change of address - Allegations of lack of candour, poor memory and lack of consideration of firearms laws - Whether issue of licence not desirable in the interests of public safety - Whether the applicant is a fit and proper person

Legislation:

Firearms Act 1973 (WA), s 11A, s 22(2), s 30B

(Page 2)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant : Mr A Skerritt
Respondent : Sergeant J Jasper

Solicitors:

Applicant : N/A
Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant applied for the issue of a firearm licence to allow him to use an air pistol for use as a member of an approved sporting club.

2 In November 2007, the applicant was informed that his application had been refused. A number of reasons for the refusal were given, including a past failure to correctly secure two firearms held on a collector's licence, a failure to recall owning the same firearms, purchasing a firearm without licensing it beforehand and a lack of consideration for firearms laws. Some further matters were relied upon by the respondent in opposing the application to the Tribunal for review of its decision.

3 The Tribunal considered each allegation upon which relevance was placed by the respondent, either in its original refusal or on the review. Its findings, in summary, were:

1) Little significance was to be attached to the unsecured storage of two curio firearms at the applicant's rural property, because the events concerned occurred about 20 years ago, the firearms were very old and disabled, were display pieces and their storage reflected a different time in terms of the way in which firearms were regarded.

2) The evidence did not support an allegation that the applicant left the curio pieces with an unlicensed person (his former wife).

3) Although the allegation of a failure to notify police of all the applicant's changes of address was made out, the relevant events occurred some 24 and 19 years ago, the applicant was acting upon a misapprehension regarding his obligation concerning the curio firearms, and in relation to his move to Queensland, the applicant registered or disposed of his firearms legally shortly after moving there in accordance with (or in excess of) the obligations then applying in that State.

4) The alleged failure to license one of the curio pieces amounted to no more than administrative oversight.

(Page 4)

5) An alleged lack of candour on the part of the applicant on two separate occasions was found unsubstantiated. Whilst the Tribunal did comment adversely on the behaviour of the applicant at the Firearms Inquiry Branch when discussing his firearms history with police, it found that the evidence did not indicate an endemic personality trait which should disqualify him.

6) Of a number of claimed failures of memory by the applicant, none was found to be sufficiently serious to have the result that he be denied the licence, and some did not, on close analysis, constitute such a failure.

7) The general allegation of inadequate consideration by the applicant for the firearms laws was discounted by the failure to substantiate a number of specific allegations and facts in mitigation of the others. The applicant had sufficiently addressed his past inattention to his obligations as a firearm licensee.

4 The Tribunal concluded that the allegations relied upon were not sufficient to sustain the decision of the respondent and the decision was set aside.

Introduction

5 The applicant seeks review under s 22(2) of the Firearms Act 1973 (WA) (Firearms Act) of a decision of a delegate of the respondent made on 26 October 2007 to refuse to issue a firearm licence to the applicant (decision). The licence sought by the applicant was in respect of a Feg handgun air or gas, .177 calibre, serial number 07589.

6 Notice of the decision was given by a letter dated 26 October 2007, which the applicant received on 9 November 2007. According to this letter, the reason for the decision was that the respondent's delegate was satisfied that it was not desirable in the interest of public safety for the applicant to hold the licence applied for, nor was the applicant a fit and proper person to hold the licence.

7 Matters upon which the delegate had come to the conclusion just mentioned were then listed in the letter as follows:

Two firearms listed on your Collector's Licence Number 8800301 were not correctly secured in an approved cabinet as detailed in Schedule 4 Firearms Regulations but had them openly displayed within your dwelling.

(Page 5)

When you left your house you left the firearms in possession of an unlicensed person and subsequently the firearms have disappeared.

You have not notified police in any way of this occurrence as required. Section 30B Firearms Act.

You also appear to have forgotten owning firearms on a collector's licence and vehemently deny ever having had one. (Held since 1985)

In the past you have also purchased a firearm without properly licensing it before hand.

It appears you do not have due consideration for the firearm laws of Western Australia.

Issues

8 Each of the particulars upon which the respondent relied referred to in the notification letter is either denied or explained in such a way as not to justify the decision. The respondent's statement of issues, facts and contentions contained some additional matters upon which it relied which, again, the applicant either denies or asserts should not have the consequence that he is denied a licence.

9 It is therefore necessary to examine each of the allegations advanced by the respondent, with a view to determining its significance to the question to be determined of the appropriateness of the applicant holding the licence. In so doing, the principles to be applied in terms of the requirements of the interests of public safety and whether the applicant is a fit and proper person to hold the licence will be addressed. The allegations are:

a) Failing to correctly secure two firearms in an approved cabinet;

b) Leaving firearms in the possession of an unlicensed person upon relocating;

c) Failing to keep the police informed of changes of address;

d) Purchasing a firearm before obtaining an appropriate licence;

e) Exhibiting a lack of candour in the process of applying for the licence;

f) Exhibiting a poor or imperfect memory; and

(Page 6)

g) A general lack of consideration for the firearms laws.

10 I will examine each of the identified issues in turn, but before doing so, I will record some background information pertaining to the applicant and his firearms history.

Background facts concerning the applicant including firearms history

11 The applicant was born in Germany and is 80 years old. He emigrated from the then East Germany to Australia in the early 1970s. He was shortly before the end of the Second World War imprisoned as a prisoner of war. He was imprisoned again under the Communist regime in East Germany in 1960 as a result of what he regarded to be a fabricated claim used as a pretext for the government sequestering a flour mill formerly owned by the applicant's family.

12 The applicant said that he was trained in firearms during the war. He became involved in shooting as a sport when he moved to Australia, in Carnarvon, and he was a member of the Carnarvon Pistol Club during the years 1980 - 1984. He lived in Gidgegannup from 1984 - 1989 where he retained a target pistol and had two other firearms on a curio licence. As a result of the breakdown of his marriage, the applicant moved to Queensland in 1989. I will deal with the applicant's dealings with his firearms at that time later in these reasons.

13 In about 1993, the applicant returned to the now re-unified Germany to attempt to recover his family business and property. His attempt failed and he returned to Australia (Perth) in 2004.

14 In 2006, he joined the Rhine Donau Club, a German­speaking shooting club in Perth, with the intention of shooting air pistols. He applied for the licence the subject of this application on or about 7 September 2007.

15 The applicant gave evidence that he is currently a paid­up member of the Rhine Donau Club. The respondent took no point about the genuine reason requirement under s 11A of the Firearms Act. In these circumstances, I am satisfied that the applicant does have a genuine reason for possessing the firearm for which the licence is sought, being for use by him as a member of an approved shooting club of which the applicant is an active and financial member.

(Page 7)

Inadequately secured firearms

16 This allegation relates to the storage by the applicant of two firearms he held on a curio, later collector's, licence (curio firearms) at his former residence in Gidgegannup during the period 1984 - 1989. The curio firearms were a .455 calibre Webley pistol (Webley revolver) and a .457 calibre Boxer Martini-Henry rifle (Boxer rifle). According to the applicant, they were about 100 years old at the time and incapable of firing ammunition, even if it were available, which he says it was not.

17 The applicant freely admits that he hung the curio firearms on a wall of his house for decorative purposes. It was submitted this was a common practice at the time. The respondent submitted that at all material times it was a requirement, either under the Firearms Act (or perhaps the Regulations) or as a term of the licence, that firearms the subject of a curio, later collector's, licence be stored in a lockable cupboard. The applicant said that he thought that the requirement went no further than a broad duty to keep firearms safe. At the end of the day, I have not found it necessary to determine which of these two versions is correct.

18 Having regard to the whole of the respective parties' cases, I attach little significance to the manner of the storage of the curio firearms to the issues which I have to decide. This is so because the storage in question occurred some 20 years ago, the firearms were for all intents and purposes not able to be used for shooting and were used by the applicant purely for show, and those times were very different from today in terms of both the legal requirements and public perceptions attaching to the use of firearms.

Firearms left in possession of unlicensed person and subsequently disappeared

19 This allegation relates to the curio firearms, and is based upon a statutory declaration of the applicant for the purpose of his recent licence application, in which the applicant said that subsequent to his separation from his wife in 1989, the Gidgegannup home and contents went to his wife, who subsequently sold it 'lock, stock and barrel'. This was said to have included the curio firearms.

20 In both his written statements and evidence before the Tribunal, the applicant told a different story of the fate of the curio firearms. He said that he took them with him when he left Western Australia for Queensland via Victoria. He said that as a result of enquiries he had made recently, he realised that he had erred in his statutory declaration, and that the facts were that he had disposed of both curio firearms in Queensland to the President and a member of the

(Page 8)

Rockhampton Shooters Club, by sale and gift. The respondent appeared to accept this evidence, as its closing submissions failed to refer to this allegation at all, relying upon the applicant's faulty memory as a separate basis to deny him the licence.

21 I am satisfied on the evidence that the applicant did not leave the two curio firearms with an unlicensed person when he left Western Australia in 1989.

Failing to notify the police of changes of address - giving incorrect address

22 This allegation relates back to the conduct of the applicant in 1984 and 1989. In 1984, he left Carnarvon. In compliance with his obligation as a firearms licensee (he had two target pistols which he used at the shooting club in Carnarvon in addition to the curio firearms), he notified police that he was moving to an address in the Perth suburb of Mount Lawley. On attempts being made to contact the applicant there in relation to his licence, the police discovered that he was not living there. The applicant says that he did live there for a short period but relocated without informing the police. Although the evidence is somewhat equivocal, it appears that he moved first to Wembley Downs, another Perth suburb, for a short time before moving to the Gidgegannup area. As previously stated, in 1989 the applicant relocated to Queensland as the result of the failure of his marriage. (In both the applicant's cross­examination and closing submissions on his behalf, the move to Queensland was said to have occurred in 1984, but this was clearly erroneous as it ignores the Gidgegannup years.) He again failed to advise the police of his new address, although he did register some of the firearms which he took with him. I will return to this.

23 In relation to these clear breaches of the obligation under the Firearms Act to notify the police, the first (which may in fact have been two within a short period) is now 24 years old, the second 19 years old. In 1984, in addition to the curio firearms, the applicant possessed and operated two target pistols. The evidence is a little unclear, but it appears that one of these target pistols was sold while the applicant was in Perth. This left him with the other target pistol and the curio firearms at the time of his move to Gidgegannup. In relation to the curio firearms, the applicant said that he did not regard them to be firearms, based on their age and condition which did not permit their use as firearms. Although on a strict legal basis this would appear to make no difference, it does assist in understanding the omission in 1989 to the extent that it concerned the curio licence. If my understanding that the applicant also held a

(Page 9)

target pistol on a general licence is correct, the applicant's omission in relation to that licence is entirely unexplained (nor was it explored, at least specifically, by the respondent in cross­examination). I would make the comment that the fact that we are talking about events almost 20 years ago has no doubt contributed in no small part to this hiatus.

24 Further, according to the applicant's evidence, when he moved to Queensland, he licensed the target pistol and Boxer rifle at a time when this was not a requirement in Queensland, and did not license his Webley pistol based on the advice from the police that it was not a suitable item to be licensed. As I have said, the applicant's evidence is that he disposed of both curio firearms shortly after the move. He apparently regarded the re-licensing process he undertook in Queensland as sufficient to comply with his obligations, as it would have been had a similar set of circumstances existed in his native Germany.

25 In my view, the age of the applicant's breaches, and their circumstances as described above, militate against their presenting any serious public safety concerns in the event that the applicant were to be permitted to hold a firearm licence now.

Purchasing a firearm before obtaining a licence

26 The respondent relies upon the applicant's request made on 21 February 1986 to add the Henry rifle to his curio licence (as it then was) at a time when he had previously purchased it from a dealer. He was informed at the time that his request could not be acceded to as he had not paid a noting fee the previous July. He was issued a temporary permit pending approval of a fresh application, which he then completed. The application was subsequently granted.

27 This was another allegation to which no reference was made in the respondent's closing submission. I tend to think this was a deliberate omission, as it seems to have been a mere administrative oversight which was subsequently rectified to the satisfaction of the police. Again, its age also suggests a significance, if any, at the very low end of the scale.

Lack of candour exhibited by the applicant

28 The alleged lack of candour is associated principally with the events of September - October 2007 when the applicant made denials of having held a collector's licence or the firearms listed on that licence. It also includes an alleged inconsistency between his latter-day reference to the curio firearms as 'old pieces of junk' and a statement he made in his 1986 application to add the Boxer rifle to his curio licence that the firearm was a 'very valuable item'.

(Page 10)

29 In relation to the events of September - October 2007, there were some significant differences between the evidence of the applicant and that of the respondent's witnesses who dealt with the applicant for the purposes of his application for the licence under consideration. Those witnesses were Senior Constable Lishman of Cockburn Police and Sergeant Sampson of the Firearms Enquiry Unit at police headquarters in East Perth. The upshot of the police officers' evidence was that the applicant denied ever holding a collector's licence, even when it was explained to him that the collector's licence was a successor of the curio licence. Further, the applicant denied any knowledge of the Webley revolver and the Boxer rifle, even when identified as being on the collector's licence then in his name. It was only after Sergeant Sampson showed the applicant the curio licence application form containing the applicant's signature which attested to his collection of the curio firearms that he was prepared to accept his previous possession of the Webley handgun. According to Sergeant Sampson, he then asked the applicant where the handgun was at the moment, to which the response was his 'wife had taken it'. The applicant then became angry and stormed out of the front door. Neither officer considered that the applicant had any difficulty with English and it was Sergeant Sampson's view, based on the applicant's behaviour and attitude at the front counter, that caution needed to be exercised before granting the applicant the licence sought.

30 The applicant gave evidence that he was informed by Senior Constable Lishman that he had a collector's licence. The applicant had applied for such a licence some time previously in relation to another firearm. This had occurred since he had come back to Perth after his time in Queensland and the subsequent period in Germany. Initially, he thought that the reference to a collector's licence was to that failed application. Regarding Senior Constable Lishman referring to his holding a collector's licence at an earlier time, the applicant says he became confused and he went to the Firearms Inquiry Unit in an attempt to clear the matter up. The applicant denies dealing there with Sergeant Sampson, except to the extent that Sergeant Sampson brought out the file and show him the curio licence application bearing his signature. He said that on sighting this, it dawned on him that the firearms to which he had been referred by the police officers were those on his curio licence. He denied having been informed that the curio licence had become a collector's licence and said that had he been, this may have avoided his confusion. In his mind, the two were quite different. In response to my questioning, the applicant admitted that he denied to the police ever

(Page 11)

having possessed the curio firearms, even after they were identified by name, because he did not regard them as firearms at all, but rather as curiosities.

31 This aspect of the case has been the most difficult to determine. It appears that the applicant was not prepared to accept the information of the police which was at their disposal, in the absence of proof under his hand of what was being said. Having observed the applicant in the witness box, it is apparent that he has a forthright personality, which at times interfered with what was otherwise his frank and truthful evidence. Based on the evidence of Sergeant Sampson regarding the applicant's demeanour at the front counter of the Firearms Inquiry Unit, I believe that the applicant worked himself into a state such that he did himself no favours in the eyes of those upon whom his licence application depended. Although the other elements to which the applicant has referred - his lack of appreciation of some aspects of the English language, a long and eventful life, the police and himself talking at cross­purposes, and so on - may have played some peripheral role in the outcome, essentially I consider that it was the applicant 'losing his cool' which prevented him from considering the information being put to him dispassionately, making him appear recalcitrant. I will return to consider whether this constitutes a sufficient basis to affirm the decision shortly.

32 The second aspect of the alleged lack of candour is the inconsistency in the applicant's attribution of value to the Boxer rifle. The first point I would make is that a period of 21 years transpired between the two inconsistent statements. A second point concerns the vastly different context of the two statements. The earlier statement was made in an application to add the Boxer rifle to a licence; the second to justify, or at least mitigate the effect of, an apparent breach of obligation by the applicant as licensee (which, as it turns out, did not occur) in allowing the firearm to fall into the hands of an unlicensed person. There is a range of meanings to be given to 'value'; clearly, this piece had no great commercial value, notwithstanding that it might be of great value to a collector. This, however, imparts a subjectivity into the assessment. Subsequent to his marriage breakdown and a desire for a new life for himself, the applicant's collectable pieces were no longer of the same value as previously, to the point where, in 2007, he described them as 'old pieces of junk'. To do so may not be, and in my view, based on the evidence, was not, dishonest, but merely reflected the different priorities then existing in the applicant's life.

(Page 12)

33 This leaves whether the events in the police station and Firearms Inquiry Unit were sufficiently serious to impact adversely on the issues of public safety and fit and proper person. In my view, they were not. The applicant was working under a misapprehension, albeit of his own making, or at least prolonged by his closed mind, only to be opened by the sharp light of his signature on an old document. This disposes of a lack of candour allegation. The new criticism might then be levelled (as it was by Sergeant Sampson) that the applicant is prone to aggressive outbursts resulting in his losing control. However, his age, eventful life history and lack of any criminal record whether or not involving firearms, would indicate that the tendency to which I have referred is generally kept well within limits. It is unfortunate that it reached a peak on an occasion when more restraint was required. The evidence of the applicant at the hearing left me confident that the applicant has learned from his past mistakes and that reason rather than emotion will guide his future conduct where an issue with his firearm arises. The evidence does not demonstrate that the applicant suffers from an endemic personality trait which would render the issue of a firearm licence unsafe or inadvisable.

The applicant's memory lapses

34 This is in a sense the respondent's alternative argument in the event that the lack of candour allegation was not accepted. It relates to the following matters:

• The applicant's failure to recall his previous ownership of the curio firearms even when identified for him by police.

• His failure to recall the fate of the curio firearms.

• His change of position on whether these firearms were valuable.

• His failure to recall having a discussion with Sergeant Sampson at the Firearms Inquiries Branch.

• His failure to notify the police of his change of address.

• His failure to notify the police about taking firearms to Queensland.

35 I will deal with each matter briefly.

36 As I have already found, the proper characterisation of the applicant's failure to recall owning the curio firearms was that he had worked himself into a state where he was not able to coolly reflect on the information being put to

(Page 13)

him. His failure originally to recall what occurred with the curio firearms has also been the subject of analysis, which does not in my view disclose a particularly incriminating lapse of memory. Certainly he should have checked his facts before making a false statement in a statutory declaration, but it was made at a difficult time in the applicant's life and without consideration of its possible significance. Moreover, it is a lapse for which the applicant has paid a price in terms of its undoubted contribution to the respondent's adverse opinions against him. The applicant has now demonstrated that with cool deliberation he is capable of accurately reconstructing events from almost 20 years ago.

37 The applicant's apparent shift in his assessment of value of one of the curio licence firearms has also been explained in a way which does not discredit him. At one point, in his cross­examination of the applicant, the respondent's counsel appeared to be attacking him on the basis that his recent claim that the curio firearms had no value exposed a failure to remember the contrary claim all those years ago. Leaving aside the applicant's changed circumstances to which I referred when first addressing this matter, in my view it would behove a person of extraordinary powers of recall to factor such a matter into a statement made years later. It does, however, tend to show that the applicant is a person who endeavours to tell the truth. As for the difference between his and Sergeant Sampson's evidence, I have not found it necessary to prefer the evidence of one over the other for any other purpose and it is appropriate to regard this as a neutral factor.

38 I will now deal with the applicant's failure to notify police of his changes of address. The hypothesis under discussion is that the applicant forgot to comply with his notification obligations at relevant times. Once more, the age of these memory lapses, if they were such, count against any great significance being attached to them - they occurred between 1984 and 1989. Although the applicant did give the required notification when he first moved to Perth, there appear to have been two further moves within Western Australia (Wembley Downs and Gidgegannup) where he did not. No evidence has been produced regarding the move to Wembley Downs and the failure to notify the police then is unexplained. Very little evidence concerning his move to Gidgegannup was presented. At one point, the applicant said that there was no obligation to notify the police at that time, which would appear not to be correct. But these are events which now extend back into the recesses of modern history. Regarding the move to Queensland in 1989, the applicant said that he did not know what his ultimate destination was going to be and he went initially to Victoria.

(Page 14)

His evidence was that when he reached Queensland, he had his target pistol and the Boxer rifle registered, despite there being no legal requirement to do so in Queensland at the time, and that he had assumed that this was sufficient notification for the purposes of the Western Australian authorities, based on his experience in Germany. This evidence is credible, albeit not in conformity with the Western Australian notification requirements. Again, in my view, the notional failure of the applicant to remember to comply with his notification allegations in 1989 in the circumstances in which the applicant found himself at the time, to which I have referred, is not of itself sufficient to regard him as not a fit and proper person for the purpose of holding a licence in 2008, given the applicant's clear evidence before the Tribunal that he is now well aware of the relevant requirements (notification and storage) and in the case of any doubt he would contact the firearms authorities.

39 Regarding the alleged failure to notify Western Australian police that he had taken his firearms with him to Queensland, this appears to rely upon s 30B of the Firearms Act. But that provision was not enacted until 1996, which means that no such obligation existed in 1989 and the applicant could not have breached it.

The applicant has inadequate consideration for the firearms laws

40 This allegation is a conclusion said to flow from other allegations. In my view, the evidence discloses some inattention on the part of the applicant to various obligations he has had in the past as a licensee under the Firearms Act. The factors underlying that inattention are numerous and include his marriage breakdown, inaccurate characterisation of the firearms in his possession and lack of appreciation of his notification obligations. Although counsel for the respondent referred to the absence of any penalty being imposed or prosecution action taken against the applicant as being a sign of the respondent's generosity, it might also be seen as reflecting the low scale of wrongdoing. One might ask rhetorically, if the police were prepared not to take the action open to them on those matters, why do the same matters assume any great significance for the question of the applicant's ability to hold a firearm licence?

41 The applicant is a man of 80 years of age who has had a long and interesting life. In my view, his evidence discloses insight into his past failings. Those failings were neither endemic nor so grave as to render him unsuitable to hold a firearms licence many years later. It is highly unlikely that they will be repeated.

(Page 15)

Conclusion and orders

42 For the above reasons I find that the allegations raised against the applicant are not, either individually or cumulatively, sufficient to sustain the decision. In particular, they do not indicate that the grant of the licence is not desirable in the interests of public safety (in the language of s 11(1)(b) of the Firearms Act) nor that the applicant is not a fit and proper person to hold the licence (s 11(1)(c) of the Firearms Act).

43 The Tribunal orders that:

1. The decision of the respondent's delegate made 26 October 2007 is set aside.

2. Subject to the payment of any applicable fee, the respondent shall grant the applicant a firearm licence for a Feg handgun air or gas, .177 calibre, serial number 07589.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER