Bettington v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-07-30

(1) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the transcript and recording of the confidential hearing in the proceeding on 30 July 2021 and the contents of all paragraphs in these Reasons marked '[NOT FOR PUBLICATION]' are not to be published or released to the Applicant, her legal representatives, or the public.

Introduction

The applicant, Mrs Ann Bettington, had her firearms licence revoked by the Firearms Registry of the NSW Police Force (the Commissioner) in August 2020. The Commissioner's decision to revoke the licence was based on s 24(2)(d) of the Firearms Act 1996 (NSW) and clause 20 of the Firearms Regulation 2017 (NSW) (the Regulations), in other words, on public interest grounds. Mrs Bettington applied for an internal review of that decision but the review affirmed the original decision. Mrs Bettington has applied to the Tribunal for administrative review of the revocation decision.

Relevant legislation

The underlying principles of the Firearms Act are set out in s 3(1) of the Act. They include: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety - 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
It is an offence to possess or use a firearm without a licence or permit. The licensing scheme is set out in Part 2, Division 2 of the Act. Different categories of licence cover different types of firearms, and some categories of licence can only be issued if specified conditions have been met.
When a person applies for a licence the Commissioner has to decide whether to issue the licence or to refuse it. There are no circumstances in which the Commissioner must issue a licence - the power to issue a licence is discretionary - but there are some circumstances in which the Commissioner must refuse to issue a licence. These include:

where the Commissioner is not satisfied the person is 'a fit and proper person and can be trusted to have possession of firearms without danger to public safety' (s 11(3)(a)),
where the Commissioner is not satisfied that the storage and safety requirements set out in Part 4 of the Act are capable of being met by the person (s 11(3)(c)),
where the person is under 18 years of age (s 11(5)(a)), or
where the person has been convicted of specified offences or is or has been subject to an apprehended violence order (s 11(5)(b) and (c)).

In addition, under s 11(7) of the Act, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 24 of the Firearms Act authorises, and in some cases mandates, the revocation of licences. Relevantly, s 24(2) provides: A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
In relation to paragraph (d), clause 20 of the Regulations 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'.
The Commissioner may also suspend a licence, under s 22(1) of the Act, if the Commissioner is satisfied there may be grounds for revoking a licence.

Firearms licensing background

The licence that was held by the Applicant is described as a 'Category ABC Firearms Licence'. A licence of that kind authorises the licensee to possess or use certain specified rifles and shotguns (Firearms Act, s 8) but only if, among other things, the Commissioner is satisfied that the person has a 'genuine reason for possessing or using the firearm' (s 12(1)). Mrs Bettington has had such a licence since at least September 1997 for the genuine reason of primary production. Her most recent licence was issued on 31 October 2017 and was due to expire on 31 October 2022.
Over the years Mrs Bettington has been visited by the Police on several occasions to see whether she is meeting the safe storage requirements in the Firearms Act. On 23 February 2004, 4 August 2011 and 16 August 2016, following inspections by local Police officers, Mrs Bettington was found to be compliant with the safe storage requirements in respect of the firearms licensed to her. Indeed, there appear to be no instances of the Police carrying out a safe storage inspection in respect of Mrs Bettington's firearms licence and being dissatisfied with the extent of Mrs Bettington's compliance.
Mrs Bettington's personal firearms licence does not represent the full extent of her historical relationship with the Firearms Registry. She also had a 'Category C Employee Authority' from January 2005 to November 2007, issued to her in connection with the firearms dealership 'Bettington Ammunition Supplies'.
In addition to that, she held a 'Dealer's Director Authority' from September 2014 until March 2019, in connection with that same dealership. It is not clear why her status changed from 'employee' to 'director', especially since at all times the dealership was operated not by a company (which would explain her status as a director) but by a partnership, with Mrs Bettington and her husband Albemarle (Marle) Bettington as the sole partners. Her husband was the primary licence holder of the dealer licence.

Safe storage inspection for the business

The address where the business was conducted is the same as Mrs Bettington's residential address. This is a property of some 225 acres on the south coast of New South Wales, where Mrs Bettington says she carries on primary production activities.
On 27 March 2019, Police conducted a safe storage inspection of Bettington Ammunition Supplies, at the property owned by Mr and Mrs Bettington. The dealer's storage facilities included a storage shipping container, a subfloor storage facility located under the residence, and a combined storage facility and office, being a freestanding portable building at the front of the residential property.
Police found a number of breaches of firearms legislation, including inadequate security alarm and video surveillance facilities, loose storage of firearms, unregistered firearms, missing firearms, ammunition stored in the same cabinets as firearms, and inadequate record keeping and tagging of firearms.
As a result of the breaches the Police found, the dealer licence was suspended with immediate effect, and so were the personal licences held by each of Mrs Bettington, her husband and their son Charles. All firearms located on the premises were seized.
Two days later, on 29 March 2019, Police returned and found a further 14 firearms stored in the subfloor area under the house. The Police regarded this discovery as a further breach of the legislation, on the basis that none of the occupants of the property were authorised to be in possession of firearms following the suspension of their licences. Mrs Bettington's husband resisted any suggestion that these additional firearms had been brought onto the property after the earlier inspection, claiming the Police 'must have missed' them the first time.

Execution of the search warrant

Six days later, on 4 April 2019, and in light of the discrepancies between the records held by the business and the firearms actually seized, the Police executed a search warrant at the property and identified yet further breaches, including finding firearm parts and ammunition in the home, prohibited items such as hand grenades and detonators, and paperwork that was not compliant with legislative requirements.
Mrs Bettington's husband took full responsibility for the breaches and subsequently pleaded guilty to and was convicted of 33 offences, namely:

11 counts of Not keep firearm safely - not prohibited firearm/pistol - $300 fine;
Licensed firearms dealer fail to keep label and records req - $300 fine;
Holder of Category A or B licence not have approved storage - $300 fine;
Possess ammunition w/o holding licence/permit/authority - $300 fine; and
19 counts of Possess unregistered firearm - not proh firearm/pistol - T2 - $300 fine.

Revocation of Mrs Bettington's firearms licence

On 13 August 2020 the Commissioner notified Mrs Bettington in writing that a decision had been made to revoke her Category ABC firearms licence.

Confidential material

The factual background set out above is based on the documents lodged with the Tribunal under s 58 of the ADR Act, the evidence of Senior Constable David Bates (the officer in charge of the safe storage inspection and the execution of the search warrant), and on the video footage of those events included as Exhibit SC-B1 to SC Bates' statement dated 8 December 2020 (Ex R2).
In paragraph 59 of Ex R2 SC Bates stated, in relation to the prosecution of Mr Bettington: In my view, it was open to the NSWPF to also lay charges against Mrs Bettington given that: a. she held an employee authority within the firearms dealership; b. [she] was personally licensed to possess and use firearms; and c. there were a number of non-compliances with safe storage requirements regarding firearms and ammunition in the residence and subfloor storage area which she frequented. However, as Mr Bettington took full responsibility for the breaches, a decision was made to only bring charges against him.
SC Bates also provided a confidential affidavit dated 17 November 2020 (the Confidential Affidavit - Confidential Ex R4). On 10 December 2020 Senior Member Naida Isenberg made orders under s 59 of the ADR Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in relation to the Confidential Affidavit and the documents referred to in it (the Confidential Material): see Bettington v Commissioner of Police [2020] NSWCATAD 303. I now address the Confidential Material but in a way that preserves the effect of those orders.
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The Commissioner's concerns

The Commissioner claims Mrs Bettington: 1. has contravened a number of provisions of the Firearms Act, both in her capacity as an employee of the dealership and as a firearms licence holder; 2. has demonstrated a lack of understanding of her obligations and responsibilities as a firearms licensee; 3. has failed to take any responsibility for serious non-compliances under the Firearms Act, and as a result it is not in the public interest for her to hold a firearms licence.

Mrs Bettington's response to the concerns

Mrs Bettington's response is conveniently summarised in this excerpt from her statement dated 21 November 2020, at page 15: I seem to be classified as guilty by association and am not being given a chance to prove myself. My crime seems to be the fact that I am married to my husband. I have not committed any offences and I resent being treated like a criminal.
Her central proposition is that her husband was responsible for the firearms dealer business and any shortcomings in record-keeping and safe storage of firearms and ammunition are his.
Mrs Bettington says she needs her firearms for her primary production business and has provided three character references in support of what she describes as her 'good name and character'.

Consideration

In my view the Confidential Material does not weigh against Mrs Bettington.
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Next I acknowledge the character references provided in support of Mrs Bettington's application. Her referees speak of a kind, honest, generous and reliable person. She appears to be a person of good standing in the community. The references were not challenged and I accept them.
In addition to the character references, Mrs Bettington provided statements from ten people who have had dealings with Bettington Ammunition Supplies, some over a period of 15 years or more. Each of these people states that in all the dealings they have had with the dealership, Mrs Bettington was not involved in selling or handling firearms or ammunition. If she was present when they arrived at the property to transact business she would call her husband to deal with them. Again, these statements were not challenged and I accept them.
These statements largely accord with claims Mrs Bettington herself makes in relation to the dealership. In her oral evidence she described her involvement in the business as 'like an office girl'. She said in cross-examination: My husband put my name down as a partner but I had nothing to do with the business as such. The only thing I ever did for Marle was when he dictated to me what I had to send to Firearms Registry and then I would forward it on the computer because Marle is not computer literate at all and we had to do it on the computer, we had no choice, and the Firearms Registry put the system on our computer back in about 2007 I think it was.
Mrs Bettington was asked if one of her roles in the business was to undertake the paperwork for the business, and she replied: No, that is not correct. The only paperwork I ever did was that Marle dictated what I had to do if any firearms had to be forwarded to Registry then he dictated what I had to do and then I forwarded to Firearms Registry for him because he was not computer literate.
It has been submitted by the Commissioner that her role in the business was greater than she has made it out to be. The submission is based on her husband's answers to questions during a voluntary interview on 29 March 2019 (Annexure B to Ex R2 - the Commissioner relies on the answers to questions 31, 110, 111 and 121 but I have included some additional questions and answers for context): Q31: Do you, can you tell me what the name of that system [the Firearms Registry computer system - Firearms Link] is? A: Ah, I don't know […] I'm not sure, I'd have to ask Ann that one. … Q107: O.K. So, so you fill out the permit to acquire, you then give the person the firearm. In terms of your business how do you record the sale of that firearm in terms of money being transferred? So if I was to give you for argument's sake, just as an example, a thousand dollars for a rifle. A: Ah hmm. Q108: I give you a thousand dollars cash, what do you do in terms of paperwork to cover that sale? A: Well they get a receipt for it. Q109: O.K. So and is that something you hand write out or is it something - - - A: No, no, handwritten. Q110: O.K. So you hand write out a receipt for them. And, and then what paperwork do you then send to the Registry? A: The permit to acquire, the bottom part of the permit to acquire - - - Q111: Yeah. A: - - - which Ann puts through on the computer. Q112: O.K. And so essentially then you would go to Ann and she would enter the details in. Do you check to see whether Ann enters the information into the computer? A: Yeah. Q113: Or do you just rely on the fact that you - - - A: No, no I'm usually there. Q114: Yeah. A: I mean not, it doesn't necessarily get done that day but - - - Q115: Yeah. A: - - - you know, we do try to do it as soon as possible. Q116: Yeah. And is it the case that by your recollection have you ever conducted a sale of a firearm and forgotten to give Ann the, the instructions or the information to enter it onto the computer? A: Ah, I think yes there is one case I think I did fill out some paperwork and sent it off to Registry and we didn't put it through on the computer. Q117: O.K. A: Yes I think I have done a mistake like that, yes. Q118: And it's a case that, is it the case that Ann may not be aware that you've conducted a transaction? If she was for argument's sake and you do a transaction on a day that she's there, other than you telling her is there a way that she would be able to check to see that transaction's been done? A: No. No. Q119: O.K. And then from the Registry when you conduct, put the stuff onto the computer, the information onto the computer Firearms Link, what information do you get back from the Registry to confirm that transactions go through? A: Well you get the receipt number and that. Q120: Yeah. Do you get a letter from the Registry? A: Ah, yes, yes, yes, a big wad of, yeah that comes back. Q121: O.K. O.K. And your quarterly returns, do you recall what they are? A: Ann does those. Q122: O.K. And how does she do those, just on the computer? A: Yeah. Q123: Does she talk to you about what's in [or] out? A: Yeah she says, you know, we go from this date to date and yeah - - - Q124: O.K. A: - - - do it like that and says there's been X amount of transactions. Q125: Does she confirm with you that the report, the quarterly returns are right before she sends them off? A: Yeah.
Those excerpts are consistent with Mrs Bettington's evidence about the extent of her involvement in the business, and especially her minimal involvement in the record-keeping for the business. I reject the Commissioner's submission that she had greater involvement than she claims to have had. She bears no responsibility for the shortcomings in the record-keeping of the business.
I now turn to the question whether she bears any responsibility for the safe storage shortcomings of the business.
The safe storage shortcomings can be divided into distinct categories, based on location. First there is the shipping container; next there is the subfloor area; then there is the combined storage facility and office; and finally, the residence itself.
As far as the shipping container is concerned, Mrs Bettington claimed not to know whether it had a security alarm or any video surveillance equipment. She said she had 'nothing to do with that sort of thing', and I accept the truth of that statement. I also accept her claim that she 'never went into it', as she answered in cross-examination. None of the many safe storage shortcomings in the shipping container resulted from any default on Mrs Bettington's part.
With the subfloor area, Mrs Bettington said she didn't know what was in that area because she had no access to it. She said 'Marle had one key, one key only, and he had that. I had nothing.' She added 'I did have my preserves down there somewhere but I don't know where they put them because I haven't been down there in ages and if I needed them then he would bring them up for me. I didn't see them because I didn't have a key.' When challenged on her claim that she hadn't been down there for years she replied 'Well I never had to … As far as I know that was the room where Marle did his reloading and that sort of thing.'
In his statement dated 23 June 2021 (Ex R3), when dealing with what was found in the subfloor area during the safe storage inspection, SC Bates stated at [13]: Relevantly, a firearm was found sitting in front of a cabinet that held a number of glass jars. Police were informed by the Applicant's son that the jars were 'Mum's jars' and if anything was broken the Applicant 'will break your neck'. This confirmed to Police that the Applicant has access to, and regularly uses, the Subfloor Storage Area. The conversation between Police and the Applicant's son was captured on body worn video footage between 42:59-55 minutes.
I have viewed that segment of footage, along with much of the other video material provided to the Tribunal. Charles' statement about his mother breaking someone's neck had nothing to do with the glass jars. It was in connection with a valuable and fragile dinner set on the other side of the room. As for the claim that Mrs Bettington 'has access to, and regularly uses, the Subfloor Storage Area', one of the Police officers asked Charles 'So Mum has access to here to put the food in?', and Charles answered 'Yeah'.
I prefer Mrs Bettington's sworn evidence to the throwaway response given by her son on 27 March 2019. I find that she did not have ready access to the subfloor area and did not regularly use it. I accept her claim that she had not been into the area for ages. She had no reason to be aware of, or even to suspect, any breaches of the safe storage requirements there.
The next location is the combined storage facility and office. This seems to be the place where most of the ammunition held by the business was stored. In light of my finding that Mrs Bettington had minimal involvement in the business, and her evidence, which I accept, that she accessed the Firearms Link software not from this office but instead from the computer in the office inside the residence, I find that she was unaware of any safe storage shortcomings in this location.
The last remaining location to consider is the residence itself. In Ex R3, and dealing with the safe storage inspection on 27 March 2019, SC Bates stated at [14]: Within the residence, Police located several personal firearms registered to the Applicant and Mr Bettington. Three of these firearms were found to be loaded at the time of the inspection. This is an offence under the Firearms Act for failure to have approved storage. The Applicant was jointly responsible for the security of these firearms.
SC Bates dealt with the search on 4 April 2019 at [19]-[22]: [19] About 12:05pm, Police commenced searching the residence. Several items were located, including: a. a firearm barrel under the bed of the spare bedroom; b. firearm magazines and live ammunition rounds in a gun safe (see Video 00024.MTS at 1:48:00-2:02:41) c. live ammunition and a firearm part in the office; d. a box of 12 gauge ammunition unsecured in the sewing room in the residence (see Video 00025.MTS at 27:00-29:05); e. a package containing 100 projectiles for an air rifle on the veranda. [20] In the master bedroom, unsecured ammunition was located, including 8 x 12 gauge ammunition in a belt, 46 x .243 calibre rounds in a box, and a cannister with .22 calibre rounds all unsecured. This can be seen in Video 00025.MTS at 52:00, 59:00-1:03:00. [21] In the entrance room/nook near the kitchen, boxes of .22 calibre ammunition were located unsecured. This can be seen in Video 00025.MTS at 40:00-48:19. [22] In total, 349 rounds of ammunition were located unsecured in the residence.
I accept that the discovery of three loaded firearms, and 349 rounds of unsecured ammunition represent major and very serious breaches of safe storage requirements. The question is to what extent, if at all, is Mrs Bettington responsible for these breaches.
In relation to SC Bates' statement that Mrs Bettington was 'jointly responsible' for the security of the firearms in the residence, I have searched for a legislative provision that might deem her to be responsible for things she is not actually responsible for. I do note that s 8 of the Firearms Act, under the heading 'Firearms dealer licence', provides as follows: Authority conferred by the licence: In the case of a firearms dealer other than a club armourer or a theatrical armourer, authorises the licensee and (subject to the conditions of the licence and the regulations) - (a) employees or directors of the corporation specified in the licence, or (b) employees of the partnership so specified, or (c) employees of the individual so specified, who are eligible to be issued with a licence and who are authorised in writing by the Commissioner, to possess, manufacture, convert, acquire, supply, repair, maintain or test, in the course of carrying on the business of a firearms dealer, and only at the premises specified in the licence, any firearm to which the licence applies, and to possess, manufacture, acquire or supply ammunition for those firearms.
But that specifies what activities are authorised by a dealer licence; it says nothing about the responsibilities of a person who, like Mrs Bettington, is an authorised director or employee of a firearms dealer.
I have also had regard to s 4A of the Firearms Act, which might be thought to result in Mrs Bettington being 'in possession' of all the firearms found on the premises on any of the occasions when Police attended and identified the many breaches of the legislation. But I am satisfied that, with the exception of the 18 specific firearms licensed to Mrs Bettington, she 'did not know and could not reasonably be expected to have known that the [other firearms were] in or on the premises' (s 4A(1)(b)).
On similar reasoning Mrs Bettington does not bear any responsibility for the unsecured ammunition in the residence. It is apparent from some segments of the video footage that her husband did not always pay proper regard to the safe storage requirements relating to ammunition and I comfortably conclude that the transgressions identified during the inspection on 27 March 2019, and the execution of the search warrant on 4 April 2019, did not result from any act or omission on Mrs Bettington's part. I am also satisfied that not only did Mrs Bettington not know of these transgressions, she could not reasonably have been expected to know of them.
I also express my opinion, contrary to that of SC Bates, that on a proper consideration of the evidence before the Tribunal, it is unlikely that charges would have been laid against Mrs Bettington for any of the transgressions found at the property.
One further matter needs to be dealt with. The Commissioner submitted that Mrs Bettington's stated intention to use firearms for the protection of her property demonstrates a lack of understanding of her obligations and responsibility as a firearms licensee. The submission is based on s 12(2) of the Firearms Act, which provides as follows: An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons - (a) personal protection or the protection of any other person, (b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).
But, as relevant to paragraph (b), the Table in s 12 includes 'primary production' as a genuine reason, and this clearly applies in Mrs Bettington's case. She is authorised to use firearms 'solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned)'. Her concern is with protecting the livestock on the land, not with protecting the land itself. The Commissioner's submission in this respect is rejected.

Conclusion

There is no escaping the fact that there were very grave shortcomings in the record-keeping and safe storage requirements imposed on the dealership. But those shortcomings were not the result of anything Mrs Bettington did or failed to do.
Mrs Bettington has had an unblemished history as a firearms licensee. It is inappropriate to attribute to her the failings of her husband. I am satisfied, on the basis of the material presented to the Tribunal, that there is no reason to revoke her firearms licence. In particular, I am satified that: 1. She has not contravened any provisions of the Firearms Act, either in her capacity as an employee of the dealership or as a firearms licence holder; 2. She has demonstrated a good understanding of her obligations and responsibilities as a firearms licensee; and 3. It is not the case that her continuing to hold a firearms licence is contrary to the public interest.

Order 1. Set aside the decision under review; substitute a decision that Mrs Bettington's firearms licence is not revoked.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2021

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)