Toube v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 286

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Toube v Commissioner of Police, NSW Police Force [2025] NSWCATAD 286

Hearing dates:

27 February 2025

Date of orders:

19 November 2025

Decision date:

19 November 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The Respondent’s reviewable decision is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – firearms – firearms offences – suspension and revocation - criminal convictions quashed on appeal – underlying conduct – gel blasters – paintball - imitation or “toy” firearms – public interest.

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Paintball Act 2018

Cases Cited:

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

Aubrey v Commissioner of Police [2005] NSWADT 266

Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211

Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police [2013] NSWADTAP 16

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

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Director of Public Prosecutions v Smith (1991) 1 VR 63

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

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

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

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159

Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43

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

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

O'Sullivan v Farrer [1989] HCA 61

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Vella v Commissioner of Police [2003] NSWADT 91

Ward v Commissioner of Police [2000] NSWADT 28

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

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

Abbas Toube (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
T Lowe (Applicant)

Solicitors:
Kings Law Group (Applicant)
Bartier Perry (Respondent)

File Number(s):

2024/00260200

Publication restriction:

None

REASONS FOR DECISION

1. On 15 July 2024 Abbas Toube (the Applicant) filed an application with this Tribunal seeking a review of the 16 May 2024 decision by a delegate of the Commissioner of Police, NSW Police Force (the Respondent) to refuse his application for a Category AB firearms licence on the ground that it was not in the public interest.

2. The Applicant previously held a Category AB firearms licence from 2017, which was suspended and revoked in 2021. That revocation was the subject of an internal review by the Respondent which affirmed the decision to revoke the licence on 14 August 2022. At the time of that internal review in 2022, the Applicant had been charged with firearms offences (the details of which I address below) and was on bail pending finalisation of those charges. Taking that history into account, as well as the Applicant’s submissions regarding his licencing history and lack of criminal convictions, the Respondent decided then that it would not be in the public interest for the Applicant to hold a firearms licence.

3. At the time the Applicant’s licence was suspended and then revoked in 2021 the Applicant was in possession of 16 registered firearms ranging from 9mm luger pistols to various calibre and range bolt, pump and lever action rifles, a double-barrelled shotgun and a semi-automatic air rifle, and his residential address was the safe storage location. The criminal charges related to unregistered firearms (additional to those registered) and safe storage offences.

4. On 8 April 2024 the Applicant made another application for a Category AB firearms licence. In that application he disclosed that he had a firearms licence suspended or revoked and explained “convicted of illegal possession charges dismissed in court”. On 16 May 2024 the Respondent refused the application on the basis that although the firearms related charges were quashed, it was satisfied that they had occurred on the balance of probabilities and the Applicant had therefore contravened s 7(1) and (2) of the Firearms Act 1996 (the Act), and it was not in the public interest pursuant to s 11(7) of the Act for the licence to be granted.

5. On 13 June 2024 the Applicant sought internal review and on 3 September 2024 the Respondent finalised its internal review, affirming the 16 May 2024 decision. In the meantime, the Applicant had made this application for review to the Tribunal on 15 July 2024, but adjourned these proceedings pending the Respondent’s internal review outcome.

6. The grounds for the Respondent’s reviewable decision of 3 September 2024 were that, applying the civil standard of proof, the Respondent was satisfied that the conduct underlying the criminal charges had occurred and that this conduct was not compatible with the privilege of holding a firearms licence.

7. The application for review proceeded to hearing before me on 27 February 2025. The Applicant provided the following documents to the Tribunal, and was cross examined at hearing:

1. Statement dated 28 November 2024, annexing the following:

1. Screenshot of the Sporting Shooters Association of Australia (SSAA) website advertising the SSAA Shot Expo 2020;

2. Character reference dated 14 February 2025 from the Applicant’s wife;

3. Character reference dated 5 February 2025 from ’14 Stars Children Foundation’;

4. Character reference dated 11 January 2025 from ‘Deeds Oz International Ltd’

2. Character reference from Jade Taha, the wife of one of the Applicant’s relatives;

3. Bundle of certificates and statements of attainment relating to the telecommunications industry.

8. The Respondent provided the Tribunal with:

1. Documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (ADR Act) including:

1. Applicant’s firearms licensing history;

2. Applicant’s criminal history;

3. Applicant’s traffic history and licence conditions;

4. COPS database entries;

5. Applicant’s firearms licence applications;

6. Firearms registry notices;

7. Ballistics Expert Certificate by Steve Grosmaitre dated 19 August 2022;

8. Extract from Brief of Evidence for the 2022 firearms charges, including:

1. Police Statement of charging officer Constable Wolstencraft dated 8 December 2021;

2. Certificate under s 87 of the Act listing the Applicant’s registered firearms, dated 8 June 2022;

3. Police Statement of Constable Mackenzie dated 2 March 2022;

2. Statement of Steve Grosmaitre dated 4 November 2024;

3. Statement of Constable Mackenzie dated 23 October 2024, annexing a USB containing bodyworn video footage;

4. Statement of Senior Sergeant Schey dated 5 December 2024;

5. Annexures to the Respondent’s written submissions:

1. Campbelltown District Court decision by Judge Arnott SC dated 22 August 2023;

2. Letter from Kings law Group requesting internal review of the Respondent’s decision, dated 20 October 2021;

3. Screenshots from SSAA website of articles dated 16 March 2020 titled “SSAA NSW Shot Expo postponed” and 28 September 2020 titled “SSAA Shot Expo 2021 Cancelled” and “Shot Expo a Huge Success”.

9. Both parties provided the Tribunal with written submissions and had the opportunity to make oral submissions at the hearing. None of the Respondent’s witnesses were required for cross examination.

10. For the reasons that follow, I have decided to affirm the Respondent’s decision to refuse the Applicant’s Category AB Firearms Licence.

Legal Principles

11. The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.

12. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety:

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

…

(2) The objects of this Act are as follows:

…

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

…

13. The power to grant an application for a firearms licence under s 11 of the Act is “tightly constrained” and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117]. Public safety, including the Applicant’s safety, is the primary focus of the public interest issue and of the Act generally: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134.

14. In these proceedings the Respondent relied on s 11(7) of the Act to refuse the Applicant’s firearms licence application.

Public interest

15. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. The expression “public interest” is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

16. The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the 'public interest' is:

‘… an inherently broad concept giving the appellant 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.’

17. In Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657, it was stated at 681:

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.

18. In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

19. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act. A discretion to make a decision ‘in the public interest’ is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].

20. As stated by the Administrative Decisions Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

‘The Applicant’s individual interest in retaining his Category AB Firearms Licence must be subordinate to the public interest in ensuring public safety.‘

21. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the “fit and proper person” test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].

22. Since then, Hennessy DP cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that:

“The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests”.

23. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66], Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].

24. In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

25. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].

26. Where there has been or is the possibility of a threat to public safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with “making decisions that are consistent with a need to reduce any risks to a minimum”: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

Firearms offences

27. Section 7(1) of the Act provides:

7 Offence of unauthorised possession or use of pistols or prohibited firearms

(1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.

: Maximum penalty--imprisonment for 14 years.

Note : Reference to a pistol includes a prohibited pistol.

28. Section 36(1) of the Act provides:

36 Unregistered firearms

(1) A person must not supply, acquire, possess or use a firearm that is not registered.

: Maximum penalty--imprisonment for 14 years if the firearm concerned is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

Note : Reference to a pistol includes a prohibited pistol.

29. Section 39(1) of the Act provides:

39 General requirement

(1) A person who possesses a firearm must take all reasonable precautions to ensure--

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

: Maximum penalty--50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

Note : Reference to a pistol includes a prohibited pistol.

The Criminal Charges

30. The Respondent’s evidence, which was unchallenged and which I accept, was:

1. On 18 September 2021, Police attended the Applicant’s property and found the Applicant in the driveway of a family member’s house, holding what appeared to be an M4 military assault rifle, which was actually a gel blaster.

2. The Police conducted a search and discovered the Applicant was also in possession of 3 black gel blaster pistols resembling a desert eagle pistol firearm, and a light brown gel blaster with a scope style attachment resembling a H&K USP pistol firearm. The gel blasters were found on a shelf in the Applicant’s garage and inside of a basket located in a child’s bedroom. Pellets for the gel blasters were located in a bowl in the garage.

3. In the body worn footage, there appears to be no dispute that the seized items were gel blasters, that the Applicant admitted they were gel blasters, and that the Applicant was unaware that they were prohibited firearms.

1. In Constable Wolstoncroft’s footage:

(i)   At 2.22s, Constable Wolstoncroft is heard saying ‘its gel gun, yeah?’ and the Applicant replying ‘yeah’.

(ii)   At 4.05s when Constable Wolstoncroft told the Applicant he is under arrest for possession of a prohibited firearm, the Applicant replied ‘prohibited firearm? I got that online from here.’ Again at 4.40s the Applicant said ‘yeah but like we bought them online from here… I don’t see the problem’ and at 4.53s the Applicant repeats ‘I bought them online here I don’t see the problem’.

(iii)   At 6.17s, the Applicant said ‘you know like my seven year old son can buy one’, referring to the gel blaster.

2. In Constable Mackenzie’s footage:

(i)   At 5.05s the Applicant’s brother Hassan Toube, is heard saying to Constable Wolstoncroft ‘we were playing, we were joking… mate they were ordered from an Australian website in Australia’. When Constable Wolstoncroft replied that they weren’t a registered firearm, the Applicant’s brother Mohamad Toube replied ‘Why are we allowed to buy them online then?’

3. In Constable Mackenzie’s further footage:

(i)   At 2.20s, the Applicant is heard saying ‘they’re the toys, they’re gel blasters, yeah toys’.

4. In Constable Wolstencroft’s further footage:

(i)   At 1.05s, you can hear the Applicant saying to Constable Mackenzie ‘see I didn’t know that they were illegal”, referring to the gel blasters.

(ii)   At 2.48s, the Applicant is asked if he has any ammunition stored at his home. At 2.51s, the Applicant admits he has gel pellets in stored in a bowl in his garage next to his tools. At 3mins the Applicant admits the gel pellets ‘are only made ones I don’t have any that are unmade’. When Constable Wolstencroft questions him if he has means to make them (meaning the gel pellets) the Applicant replies, ‘yeah you have to put them in water’. He admitted he didn’t have any unmade ones.

4. At no point during the Applicant’s interactions with police, did he or any of his brothers mention that he had first obtained one of the pistols at the SSAA Shot Expo in June 2021, although this became his evidence in the course of the criminal proceedings and in these proceedings.

5. The Applicant was arrested and charged with the following offences:

1. 2x Not keep firearm safely – pistol - s 39(1)(A)

2. Not keep firearm safely – prohibited firearm - s 39(1)(A)

3. Possess unauthorised pistol - s7(1) - (3x black desert eagle style gel blaster pistols)

4. Possess unauthorised pistol - s7(1) - (light brown with black slide H&K USP Pistol style gel blaster)

5. Possess unauthorised prohibited firearm - s 7(1) - (M4 military rifle style gel blaster)

6. Possess unregistered firearm – prohibited firearm - s 36(1) - (M4 military rifle style gel blaster)

7. Person possess firearm which is not registered (applies to a firearm that is a pistol) - s 36(1) - (3x black desert eagle style gel blaster pistols)

8. Person possess firearm which is not registered (applies to a firearm that is a pistol) - s 36(1) - (light brown with black slide H&K USP Pistol style gel blaster)

31. The Respondent’s Ballistics Expert, Steve Grosmaitre, provided the following expert evidence which I accept:

1. The gel blasters were airguns within the meaning of the Act and therefore firearms;

2. The M4 military style gel blaster:

1. was capable of propelling projectiles in rapid succession during one pressure of the trigger, making it prohibited under item 1, schedule 1 of the Act;

2. substantially duplicated in appearance a prohibited firearm within the meaning of item 7, sch 1; and

3. was fitted with a stock that is specifically designed to operate on a telescopic basis, making it prohibited under item 11, sch 1.

3. The black gel blaster pistols resembling a desert eagle pistol firearm was:

1. a pistol within the meaning of Act; and

2. capable of propelling projectiles in rapid succession during one pressure of the trigger, making it prohibited under item 1, sch 1.

4. the light brown gel blaster with a scope style attachment resembling a H&K USP pistol firearm was:

1. a pistol within the meaning of Act; and

2. capable of propelling projectiles in rapid succession during one pressure of the trigger, making it prohibited under item 1, sch 1.

5. To be authorised to possess a pistol a licence holder must hold a category H firearms licence. The Applicant at the relevant time was the holder of a category AB licence, not a category H licence.

32. The Applicant was initially convicted of all offences at Picton Local Court on 26 May 2023. The Applicant appealed and the appeal was heard on 22 August 2023 before Arnott J in the Campbelltown District Court.

33. Judge Arnott’s decision reveals the following:

1. Constable Wolstencroft mistakenly referred to the firearms in his Statement as ‘registered’. The Court accepted this was a mistake and found the firearms were unregistered;

2. The Applicant argued the gel blasters were not firearms under the Act, but paintball markers under the Paintball Act 2018;

3. There was a question as to whether the ballistics expert had used a gel pellet or a paintball pellet to test the firearms;

4. Judge Arnott could not be satisfied, beyond a reasonable doubt, that the pellets used by the ballistics expert to test the firearms were not paintballs, and therefore there was reasonable doubt as to whether they were airguns or paintball markers.

34. The evidence of the same ballistics expert (Mr Grosmaitre) in these proceedings is that:

1. the pellets he used to test the gel blasters, were not to his knowledge paintball pellets but gel pellets as the needed to be hydrated to be used; and

2. most paintball pellets are much larger than that of a gel pellet and would not fit in the gel blasters he tested; and

3. the firearms he tested did fire gel ball pellets.

35. It is also the evidence of Mr Schey that the firearms examined by Mr Grosmaitre could not be paintball markers as they:

1. do not have the distinct features of the appearance of a paintball marker;

2. do not have the distinct operating features of a paintball marker; and

3. cannot be a paintball marker as they would be unable to fire a paintball.

36. In contrast to these proceedings, the Applicant did not claim in the course of his criminal proceedings that the items were imitation children’s toys.

Applicant’s Evidence

37. The applicants evidence stated that he purchased imitation toy firearms in 2021 from the SSAA Shot Expo which he attended on 20 June 2021 with his brother. Because police were in attendance at the Expo, he did not think that there was any issue with “imitation toy firearms” being purchased or possessed. He claims to have had complete regard for his firearms licence and had no intention to contravene any laws or the conditions of his firearms licence.

38. Shortly after purchasing the toy firearm at the Expo, he claims to have purchased a further 4 “toy” firearms from an Australian online retailer based in Queensland, the details of which he could not recall.

39. On 19 September 2021 he was charged with firearms offences by the NSW Police. The Applicant was initially convicted of the criminal charges but ultimately was successful on appeal in the District Court on 22 August 2023. In his Statement he claimed this was because the court was not satisfied beyond a reasonable doubt that the imitation toy firearms were prohibited firearms.

40. The Applicant claimed that he never had any intention to contravene firearms laws or any other laws. When he did hold a valid firearms licence, he primarily used the firearms for hunting and to maintain the upkeep of his in-laws’ farmland property, which consists of 117 acres in the rural area of Gunning NSW. He would attend the rural property on a near weekly basis, to hunt and to assist with clearing wild and dangerous animals.

41. Under cross examination the applicant had difficulty agreeing that the items for which he was charged were, in fact, gel blasters. He maintained that the items were toys and claimed to have “bought these toys for my kids”. The Applicant was unaware, when it was put to him, that the SSAA Shot Show he claimed to have purchased the first “toy” firearm at, was cancelled in 2020 because of COVID and that there had been no further SSAA Shot expos until 2024. When this was pointed out to him, further questions in relation to the Shot Show were answered with the response that he “didn't recall”.

42. The Applicant was unwilling to accept that the items were prohibited firearms, claiming “why could I buy them from the Shot Show if they were illegal? They shouldn't be at the Shot Show”. He eventually agreed that he knew at the time of their purchase that the items were gel blasters, that they could fire hydrated pellets, and he accepted that they were not authorised under the firearms legislation. He claimed, however, that they couldn't hurt anyone, and that “paintball would hurt people more”, and would not accept that they could cause any more damage than “throwing a ball”.

43. Under re-examination the applicant accepted that it was illegal to possess the items. When asked why, he said “because of what I've gone through and what I've looked into. They are illegal in NSW, not elsewhere.”

Consideration

44. At hearing the Applicant submitted that in issue was whether the Tribunal accepted the Applicant acted honestly but mistakenly in believing the items in issue were prohibited and unregistered firearms. The Applicant had not appreciated that a gel blaster was illegal, and was almost certainly not going to repeat possession of such items. He had learned from the honest mistake, was well regarded in the community, and a good man of good character. The public interest was better served by allowing the Applicant to possess and carry firearms.

45. There is no room for an honest but mistaken belief in the context of firearms possession. Such beliefs may determine whether or not criminal prosecutions can be made out, but the Act has strict requirements and obligations. Those individuals who want to avail themselves of the privilege of firearm possession and use must not only comply with those requirements, but have a full understanding and comprehension of their obligations under the Act.

46. The Applicant made admissions at the hearing that there were, in fact, breaches of the Act by him. In the criminal proceedings and in these proceedings prior to the hearing, he had maintained the opposite. These breaches were serious, as demonstrated by the penalties outlined in the Act of up to 14 years imprisonment for ss 7(1) and 36(1), and up to 2 years’ imprisonment for s 39(1)(a).

47. In these proceedings he had introduced evidence of purchasing the first firearm at the Shot Show in 2021 as proof that they could not be illegal, because they had been on sale there when Police were present. This evidence was maintained in his cross examination, even after being informed that this was not possible. The objective evidence demonstrates that this is entirely false as there was no such expo in 2020, 2021, or any year until 2024.

48. The Applicant also introduced evidence in these proceedings, which was not raised in the criminal proceedings and was not supported by the Police bodyworn footage, that the prohibited firearms were just “novelty” items, referring to them as “toys” and “imitation toy firearms” that he “bought for my kids” in an attempt to diminish the seriousness of his conduct. They were located in or near his children’s playroom, and it is clear from that evidence that he did not take seriously the threat such items can cause to public safety.

49. Even if I were to accept the Applicant’s evidence that the he believed the items were just “imitation toy firearms”, this would result in a contravention of s 4D(2) of the Act, which provides that an imitation of a pistol or prohibited firearm is taken to be a pistol or prohibited firearm, and to possess an imitation firearm, a person must hold a permit for possession of the firearm. The Applicant had no such permit.

50. In the bodyworn footage the Applicant clearly identified and accepted the items as gel blasters. In his District Court appeal, he argued that they were paintball guns. Paintball guns require a permit as well, pursuant to ss 6 and 7 of the Paintball Act 2018. The Applicant had no such permit, either.

51. The difference between paintball guns and gel blasters is significant because it is that issue which determined the Applicant’s criminal proceedings in his favour. In his Statement in these proceedings, the Applicant said:

The appeal was upheld on the basis that the court was not satisfied beyond a reasonable doubt that the imitation toy firearms subject of the charges brought by NSW Police, were prohibited firearms.

52. That is an inaccurate statement. The Applicant did not argue in the District Court that the firearms were imitation children’s toys. What was argued, was that the firearms were paintball guns (not gel blasters, or imitations, or toys), and the Court:

…was not satisfied beyond reasonable doubt that the pellet that the expert used to test the firearms in question, in the absence of more detailed evidence from him about this issue, was not a paintball.

53. That is the reason that the Applicant’s appeal in the District Court was upheld. In these proceedings, the Tribunal was provided with that “more detailed evidence” which was missing from the District Court proceedings, and the expert’s evidence was not challenged. His evidence was that he had tested a gel pellet, not a paintball pellet.

54. Additionally, these proceedings require an assessment of the Applicant’s conduct to the civil standard of proof, which based on the balance of probabilities. In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20] the Tribunal said (our emphasis):

It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion.

55. The Applicant’s contraventions of the Act, now admitted, are serious. Even if they had not been admitted by the Applicant, I would find on the evidence before me from the bodyworn footage and the expert evidence that they are made out. On the evidence before the Tribunal, the Applicant has contravened the Act by possessing a prohibited firearm (the M4 style gel blaster), possessing an unregistered firearm and unregistered pistols, and failing to store those firearms safely.

56. I agree with the Respondent’s submission that the Applicant has no proper insight or awareness into the seriousness of his conduct, although it appears he is now aware that the possession of such items is illegal in New South Wales. Whilst he agreed that the items were firearms, and said “I made a mistake”, he then reverted to defensive arguments of “why could I buy them”. When confronted with the concept that the items could hurt people or cause damage, because they were able to fire hydrated pellets, he reverted to a defensive argument that “paintball hurts more” and “so could throwing a ball”.

57. Whether the Applicant is a good man, a charitable neighbour, a helpful volunteer in the community, an excellent husband and father, and a respected and qualified telecommunications engineer – as referred to in his character references and qualifications, provided to the Tribunal - is irrelevant to these proceedings. The Respondent has not made its decision or submitted to this Tribunal that the Applicant is not a fit and proper person to hold a licence, so I will not consider or determine that question. The only issue is whether, pursuant to s 11(7) of the Act, it is in the public interest for the Applicant to hold a firearms licence.

58. The Applicant’s conduct in obtaining and possessing unregistered and prohibited firearms put public safety at risk. The gel blaster he was seen holding on a public street looked like an M4 military assault rifle. There is an obvious risk to public safety where firearms or items which look like real firearms are exposed in public.

59. The other unregistered firearm and pistols obtained by the Police when they conducted a search of the Applicant’s residence also posed a risk to public safety. They were located in the Applicant’s children’s playroom. If, as the Applicant claims, they were viewed as “toys” by the Applicant and his children, there is a very real risk that those children could have taken those firearms out in public and put public safety – and their own safety – even further at risk. The normalisation of the Applicant’s children to firearms exposure is also concerning in circumstances where the appropriate registrations were not sought or obtained and there was no attempt at safe storage.

60. As a person with a Category AB firearms licence in 2021, the Applicant was obligated to not only comply with the requirements of the Act and its regulations, but be aware of and understand those requirements. He failed in both respects. His conduct gives serious concerns to the Tribunal of his suitability to hold a firearm’s licence and future compliance with the strict requirements of the Act. His lack of insight into the seriousness of his conduct and his defence of it at hearing demonstrates those concerns must be ongoing.

61. In Jameson v Commissioner of Police, New South Police Force [2019] NSWCATAD 25, the Tribunal said at [40]:

The “public interest” is been held to require that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30.

62. In Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211, at [20] the Tribunal said:

Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them.

63. In Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [24] to [25] (emphasis added):

The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.

64. The Respondent submitted:

The Applicant has proven that not only is he unable to abide by the strict licencing requirements mandated by the Act, he is also incapable of informing himself, comprehending and understanding the requirements.

These contraventions, the Applicant’s ignorance to his obligations under the Act and his attempted circumvention of liability, evidences that it is not in the public interest to grant the Applicant a firearms licence.

65. I agree. For the reasons I have discussed above, the evidence demonstrates that it is not in the public interest that the Applicant hold a firearms licence.

66. The correct and preferable decision is to affirm the Respondent’s decision.

Orders

1. The Respondent’s reviewable decision is affirmed.

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

Registrar