Borton v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2021-06-21

Ward v Commissioner of Police [2000] NSWADT 28 Wiltshire v Commissioner of Police [2005] NSWADT 75 Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 Category: Principal judgment Parties: Luke Borton (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/00276356 Publication restriction: none

Background

The proceedings regard the review of the decision made by a delegate of the Commissioner of Police, NSW Police Force (the Respondent) pursuant to the Firearms Act 1996 (the Act) to revoke Luke Borton's (the Applicant)'s Category A Firearms Licence No. 411932304, issued 18 April 2018, to expire 7 June 2023 (Firearms Licence), and his 6 permits to acquire firearms (Permits).
Following a report to Police on 29 March 2020 about shots allegedly being fired towards a neighbouring property, on 31 March 2020 the Police executed a search at the Applicant's property and seized all firearms and ammunition located there, including a .22 Anschutz rifle inside a walk-in wardrobe in the main bedroom of the Applicant's residence, a 'Diana' air rifle 'placed between a desk and a wall' in the downstairs study / lounge room, and one box of Winchester brand .22 calibre rifle ammunition x 150 rounds and one box of Winchester shot gun cartridges x 25 rounds, located in a metal container on a bench in the work shed adjacent to the Applicant's residence on the property. The Applicant was charged with one count of "Fire firearm at other than dwelling disregarding safety-1" and two counts of "Not keep firearm safely-not prohibited firearm/pistol".

Legal principles

The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal to hear and determine the Application.
Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. Section 63 of the 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.
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, …
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, [117], as can a failure to store firearms properly: Crowther v Commissioner of Police, NSW Police Force [2017] NSWCATAD 62.
Section 11(5) provides that a licence must not be issued to a person who - (d) is subject to one of the following in relation to an offence prescribed by the regulations - (i) a good behaviour bond, whether entered into in New South Wales or elsewhere, (ii) a community correction order imposed in New South Wales, (iii) a conditional release order imposed in New South Wales, …
Section 29(3)(d)(iii) of the Act provides that a permit must not be issued to a person who is subject to a conditional release order imposed in New South Wales in relation to an offence prescribed by the Regulation.
Section 31(3)(a) of the Act prescribes that the Commissioner must not issue a permit authorising a person to acquire a firearm unless the person is the holder of a licence or permit authorising the person to use or possess the firearm concerned. Section 30(4)(b) of the Act states that a permit may be revoked "for such other reasons as may be prescribed by the regulations".
Section 24(2) of the Act provides for the revocation of a licence on a discretionary basis: (2) 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.
Clause 20 of the Firearms Regulation 2017 (the Regulations) provides: 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 discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act: Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].
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].
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."
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. 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.
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.
In determining whether it is in the public interest for an individual to continue holding a firearms licence, 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].
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], Crowther v Commissioner of Police, NSW Police Force [2017] NSWCATAD 62, Cook v Commissioner of Police [2003] NSWADT 30.
In the oft-cited Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130]-[134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].
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]. An individual's interest in retaining their firearms licence must be subordinate to the public interest in ensuring public safety: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276. 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].

The Respondent's evidence

The section 58 documents contained the following evidence which was relied on by the Respondent: 1. On 29 March 2020, Police received a complaint about what appeared to be shots fired at the shed owned by Nicholas Everson, on a property neighbouring the Applicant's. The call was made to the Police '000' emergency line and the 000 recording clearly recorded the third of the five loud sounds that Mr Everson believed were the result of gunshots. 2. Police attended the Applicant's residence and arrested him shortly after midnight on 30 March 2020. DSC Blackbourn spoke with the Applicant at around 1:25am, during which the Applicant informed him that he had a .22 rifle in his closet upstairs for hunting rabbits, that he had been out hunting between 9pm and 10pm but hadn't fired or shot anything. 3. DSC Blackbourn spoke to the Applicant's wife, Angelique, who said "he has been inside watching TV with us all night", and when asked if the Applicant had been out shooting, replied "no". 4. The investigators then attended the neighbour's property and observed five indentations that appeared to have been made by a .22 calibre firearm, coming from the direction of the Applicant's property. 5. The Applicant was interviewed two hours later. During the electronically recorded interview DSC Blackbourn asked the Applicant to explain what he was doing on Sunday 29th March 2020. The Applicant then told DSC Blackbourn that some friends had left at about 5pm and that he sat down and watched TV. At about 9pm he went and got a rifle (not two rifles) and went outside to look if there were any rabbits around. The Applicant saw his neighbours and then chose to go inside and watch TV. 6. When asked "would it be fair to say that it [the gun] should have been put back in the safe?" the Applicant told DSC Blackbourn that "I don't think so, I was using it. If I wanted to get up and go and shoot a bunny I can go and shoot a bunny". 7. The Applicant told DSC Blackbourn that he stored the ammunition magazine separately, hidden in a cupboard in the bedroom. 8. On 31 March 2020, items including all firearms and ammunition were seized from the Property. Two of the Applicant's firearms and two varieties of ammunition "were not secured in a safe when located by Police".
During the hearing DSC Blackbourn gave evidence that despite thinking that the loud sound on the 000 call was "high velocity metal hitting metal", he could not locate any bullets at the neighbour's shed by using a metal detector, and the ballistic evidence suggested that the five holes or indentations on the shed were not from firearm projectiles. The DPP chose not to proceed with the shooting charge as the evidence would not establish the offence beyond a reasonable doubt, so it was withdrawn on 3 September 2020. DSC Blackbourn confirmed that ammunition was located outside of the gun safe during the search, but the Applicant was not charged with any offences in relation to that ammunition.

Applicant's evidence

The Applicant provided a statement dated 25 May 2021 which addressed the charges and criminal proceedings included the following: I have subsequently undertaken further training with Mr Zac Kirwan of Badlands Pty Ltd, Castle Hill to improve my understanding of the law and my responsibilities thereunder, and Mr Zac Kirwan has also provided a report of my understanding of those laws. I am apologetic and remorseful for what I now understand was a failing on my behalf. That I should have withdrawn only 1 firearm at a time, completed my maintenance thereon, and returned it to the safe storage facility immediately upon completion. I also understand that I must be either using, or carrying the said firearm at all times when it is removed from the safe, and that leaving firearms close by while I watch television is a breach.
The Applicant's oral evidence at hearing expanded significantly on the information he had provided to the Police about the circumstances of 29 to 31 March 2020. He explained that he was a firearms enthusiast, with the construction and maintenance of air rifles being a particular interest of his, developing in the past four years into a hobby involving the careful recording of ballistics data on 'DOPE' (Data On Previous Engagements) cards which he created. His wife had not wanted any guns stored in the house, so the safe storage was located in a workshop contained in an adjacent shed on the property. He did not have a computer in the workshop so his practice was to remove a firearm from the safe storage in the workshop shed, bring it into the house, and have it with him when he completed the DOPE card, with the intention to fix the DOPE card to the rifles.
There was a history of animosity between the Applicant and his neighbours across the road, John and Jan Everson. They had installed floodlights on their property which the Applicant complained shone brightly into his house. He had tried to resolve things through the local council and local police without success. During a verbal altercation in 2019 Mr Everson had allegedly threatened the Applicant with "I will put an axe through your head".
On the morning of 29 March 2020 the Applicant took an air rifle out of the firearms safe because there were problems with its scope that he wanted to fix, and he took the .22 rifle out to prepare the DOPE card and secure it to the rifle. He stated "I took out the firearms because I wanted to test them. A month prior I had tested them by checking their trajectory" and he wanted to records those tests on the DOPE card for each rifle. He stated that he fixed the dial of the air rifle with superglue, but did not have time to secure the DOPE card in the manner he wanted, being particular about whether taping the card would discolour the firearm's timber. He explained that he was very particular about these rifles as they were collectors' items, he was careful not to scratch them. He was working on them when his friends, Howard and Cheryl Smith arrived. Mr Smith is a Winchester representative and assumedly a fellow firearms enthusiast. The Applicant showed Mr Smith the air rifle and a new rare rifle he had obtained. Mr Smith had brought him some other collectors' items that evening, including three World War Two bayonets which the Applicant was "extremely excited to see", and a couple of Winchester branded boxes. The Applicant claimed to have not realised the boxes contained ammunition and did not open them, thinking the boxes themselves were the gift. He consumed two or three light beers at lunch.
After the Smiths left, the Applicant went to do some computer research and at about 9pm had a shower, after which he went to get the rifles to continue working on the DOPE cards. The rifles were in the study, leaning between the table and the wall in a space about 200mm wide. He took one of the rifles outside with him to the shed and got a magazine with four rounds from the safe, which he put in his shorts pocket. He walked back around to the house via the bins and the sensor lights came on, and "John's lights came on". He said if there had been a rabbit he would have loaded the rifle and shot it, but there were no rabbits. He went back inside and continued working on the air rifle at the table downstairs in the study.
The Applicant stated that when the Police tactical squad arrived he was in the house, had the rifle in his hands because he was still working on it, unloaded, with its magazine in his pocket. He put the rifle in the wardrobe, removed the magazine from his pocket and removed the bullets from the magazine, putting them both in the closet behind some clothes.
The Applicant's evidence at hearing of his account of events and his reasons for having the firearms and ammunition out of safe storage were not consistent with the information he gave police at the time of his arrest or during his recorded interview, which focussed entirely on taking and having the rifles out for the purpose of shooting rabbits.
When asked why he had hidden the rifle and magazine in his closet, he explained that "I thought it would be safer… the best thing would have been to put it in a safe in the house. But there's no safe in the house." When asked "so what was the purpose of removing two firearms from the safe at 9pm?" he said "I needed to fix the dial on the air rifle… I had both rifles out because both cards needed to be secured to the rifle". He said that "I know John and Jan [Everson] saw me with a rifle because the light came on. I wanted the Police to tell them I was allowed to have rifles out. I'm allowed to shoot rabbits at night - I wanted the police to tell John I was allowed to do that".
Under cross examination he explained these discrepancies as follows: OK. As I've mentioned a number of times the only reason I said I was out hunting rabbits was because I presumed the neighbour saw me out with the rifles. So all I answered was trying to get the police to tell the neighbour that was ok. It didn't cross my mind that the police were concerned with safe storage.
This explanation is difficult to accept in the context of questions asked by police during the recorded interview about the storage of the firearms and ammunition: Q71: All right. Are you aware of obviously, um, your responsibility to obviously have the firearm stored appropriately? A: Absolutely, unless you're using it. Q72: Yeah so obviously tonight, like, would it be fair to say that it should have been put back into the safe? A: I don't think so, I was using it. If I want to g, get up and go shoot a bunny, I can go and shoot a bunny. … Q87: So is the magazine under lock and key at all or is it just stored in something, like, a hiding spot? A: Its hidden away, yeah. Q88: OK A: It's not under lock and key Q89: All right A: It's cau.. fir.. first thing in the morning or if I want to get up at night, middle of the night, I get up and go… Q90: Yeah A: … do whatever I want
There was no mention whatsoever by the Applicant at the time of his arrest or during the record of interview about his maintenance of the rifles and recording data as a reason for why he had the two rifles out and ammunition for the .22 rifle hidden in his home, rather than in safe storage, when the police arrived on 30 March 2020. There was also no mention at the time of his arrest or during his interview with police about Mr Smith gifting him ammunition boxes. Under cross examination he denied inventing those explanations.
Under re-examination the Applicant stated that he had learned that he needed to take out and work on only one rifle at a time: It's taken asking a lot of people to come to that idea. I understand that I can use only one at a time. I didn't realise you can't have more than one out at a time.

Applicant's supporting evidence

Michael Kruger-Davis, a registered psychologist with a keen personal and professional interest in target shooting, provided a report for the Applicant following a phone and video interview with him on 12 April 2021, for the purpose of his severity appeal in relation to his criminal charges.
Mr Kruger-Davis completed a mental status examination as part of his clinical interview, and a suicide risk assessment. He recorded the Applicant's background and history of "the incident that occurred in Glenorie on 31 March 2020" as reported to him by the Applicant. Much of the report is concerned with explaining the process of grieving and regret as they have impacted on the Applicant's emotions, and there is reference to the social and physical benefits of shooting sports.
It appears that no documents were provided to Mr Kruger-Davis for the purpose of conducting his risk assessment of the Applicant, so his assessment was entirely based on his discussion with the Applicant on 12 April 2021. He stated: From my discussions with Mr Borton, it is my opinion that he is genuinely remorseful for his actions. It is highly unlikely that he will reoffend. He presents as being of sound mind. He does not pose a threat to himself or the general public.
A second report was provided by psychologist Vicki Easson dated 7 April 2021. The Applicant had previously seen Ms Easson for treatment for a grief response in 2013, and was re-referred to her in July 2020: Luke was re-referred in July 2020 following the trauma of being accused of shooting at his neighbours shed, the explosive entry of police onto his property, incarceration at Silverwater gaol and living with the shame of police involvement in his life.
Ms Easson opined: He is an honest man, truthful to a fault. He is a man who "does the right thing". To be accused of reckless shooting, careless management of his guns and generally lying is more than he can stomach. Luke has handled guns all his life. He keeps a gun to manage the rabbit population on his property. He also has a gun collection of unusual and interesting guns. Like everything Luke does, he is obsessive about their care, storage and use. Researching, cleaning, maintaining and discussion about antique guns and rifles is one of his hobbies. He keeps his guns away from the house at the request of his wife and usually works on the guns in his shed.
Zac Kirwan, the director of Badlands Sporting, Hunting and Tactical Supplies, provided a letter dated 4 May 2021 addressed to the Applicant's solicitor stating the following: I just wanted to let you know I am now happy with Luke Burton's knowledge of safe storage requirements in regards to Firearms and also his legal obligation in regards to owning a firearms licence. As I am an accredited Trainer under the NSW DPI I have had Luke successfully complete the same theory section that is required in order to apply and hold a valid NSW firearms licence. We have also both gone through and discussed Part 4 (Safe keeping of Firearms) of the Firearms Act 1996 No 46 and Luke now shows extensive knowledge in regards to Safe Storage Requirements.
Suzanne and Peter Wood, neighbours of the Applicant and the Eversons, provided a letter dated 22 May 2021 which outlined their relationships and opinions of their neighbours, and which stated: On the night of Sunday 29 March 2020, we attest to the fact that no gun shots, or anything resembling a gun shot, were heard by us. We often hear shooting from neighbouring properties, so we are familiar with the sound.
Michael Kemmis, another of the Applicant's neighbours, provided a letter dated 12 May 2021 which described his relationship and opinion of the Applicant and his family, and stated: The incident which occurred on 29 March 2020 at our neighbour's property was a complete shock to us. We were unaware of any alleged shooting activity until Luke spoke to us after his release from gaol. If there were any shots fired that night we would have known as the horses go crazy. … Luke contacted us on the odd occasion that he needed to shoot but this was never an issue as he appeared to do it responsibly & never in our direction.
Howard Smith, who had been friends with the Applicant for 25 years, provided a letter dated 18 March 2021 which included: On the day that Luke was charged with keeping firearms unsafely my wife and I had gone to Luke and Angelique's home for lunch. On our arrival Luke was in his workshop working on an air rifle and he discussed what he was doing. Because of our arrival we interrupted his work so he placed both firearms back in the safe and locked it and also locked the workshop. I was extremely shocked to learn that Luke was being charged with unsafe keeping of firearms because I know that Luke would never knowingly break the law. Since I've known Luke, I don't think that he has even had a parking or traffic fine.
The Applicant's wife Angelique provided a letter dated 11 April 2021 which included: He is an extremely reliable, proud and meticulous man, always insistent that things must have a place and must be kept in that place, nothing should be lying around. He has been this way since I have known him (26 years). Since obtaining his licence approximately 4 years ago Luke's interest in older rifles (primarily air rifles) had developed into a wonderful passion for him. He greatly enjoyed pulling them apart and refurbishing them. He marveled at the craftsmanship of the older rifles. At my request he kept the gun safe in the garage and most of the time he would be working on the gun/s in the garage. There were some occasions that he would be researching information on the computer regarding a particular gun or scope and so would sit with the gun/s at the computer that was in the house. He would always return to guns to the safe, I never saw the guns around the house unless he was working on them in some way. … I was in disbelief when I discovered he had been charged with the unsafe keeping and blame myself now for asking him to put the gun safe in the garage and not having one in the house. … we have since sold our property that I loved so much as both of us felt so very uncomfortable and vulnerable living there.
Additional references were provided by the Applicant's adult daughter, dated 4 April 2021, which provided her opinion of her father's interest in firearms, dedication to his hobby, and careful, meticulous and law abiding character. The mother of one of the Applicant's employees, Ngaire Burley, provided a character reference dated 11 March 2021, as did the Applicant's family general practitioner, Dr Graham Campbell dated 24 February 2021 which included the following: It is my opinion that Luke Borton is very likely to take excellent care of all of his tools and machines, and that this would extend to all aspects of his life, and in particular to the use of and care for firearms. In my opinion, if he had firearms out of the needed storage, then these would be used by him in an appropriate way, and never in any way which was a risk to others. In my opinion, any suggestion to the contrary is likely to be incorrect at best, and perhaps even fabricated or malicious.

Consideration

The Applicant gave different entirely explanations as to what occurred on the evening of 29 March 2020 to the police and the Tribunal. There was no reference in his interview with Police on 30 March 2020, a few hours after the incident and his arrest, of maintenance on his firearms being the reason he had withdrawn them from the safe and had them located in the house. The Tribunal could only conclude that either he withheld his detailed explanation about firearms maintenance and trajectory testing from the Police, or that the detailed explanation about maintenance and testing was fabricated at some time between his interview with Police on 30 March 2020 and the preparation of his evidence for the Tribunal hearing. Neither option gives the Tribunal much confidence in the Applicant being a witness of truth. For that reason the Tribunal places minimal weight on the Applicant's evidence as to what occurred on the evening of 29 March 2020 and thereafter, and does not accept his explanations for what, in fact, occurred.
The Tribunal accepts DSC Blackbourn's evidence in circumstances where there was no contradictory evidence and he made appropriate concessions about the results of ballistics and the searches conducted, both at the Everson's property and at the Applicant's property.
The allegation that the Applicant discharged his firearm towards the Everson's property on the evening of 29 March 2020 is serious. The Applicant's denial of that conduct, for the reasons discussed above at 54, is of minimal weight. Whilst the charge was withdrawn, as discussed above at 23 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. In these proceedings, however, there is doubt as to whether the conduct actually occurred.
DSC Blackbourn's evidence was that the holes in the neighbours' shed were not from a firearm and he did not locate any bullet casings. The only evidence supporting the allegation that the Applicant discharged a firearm towards the Everson's property is the phone call made to 000, in which the Eversons' son stated that the Applicant was shooting at their shed. Whilst there is a loud sound in the middle of the call, I accept the Applicant's submissions that there is no conclusive evidence as to what made that noise. In the context of an acrimonious relationship between the Applicant and the Eversons, on balance there is insufficient evidence to support that allegation and I cannot find that the Applicant discharged his firearm towards the neighbours' property on 29 March 2020.
Remaining for the Tribunal's factual consideration of the Applicant's conduct are the two counts of "not keep firearms safely" in relation to the two rifles located by Police at the Applicant's residence, and the ammunition which was also not secured safely by the Applicant. Although the charges did not lead to a conviction, the Tribunal is concerned with the Applicant's conduct which led to those charges: Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [30]. Despite the unsafe storage of the ammunition not being subject to criminal charges, the Tribunal is entitled to take into consideration that conduct in relation to the Applicant's compliance with his obligations under the Act, and the potential risk to public safety.
The Applicant does not dispute the fact that the firearms and ammunition were not appropriately and safely secured, rather providing the Tribunal with an explanation as to why this occurred. The Tribunal does not accept the Applicant's explanations for why the rifles and the ammunition were not appropriately and safely secured at his property, for the reasons discussed above regarding the Applicant's contradictory evidence.

The Applicant's supporting evidence

The supporting evidence provided by the Applicant is of limited assistance. It appears that both psychologist reports were prepared for the purpose of the Applicant's severity appeal, rather than these proceedings, and their assessments are not particularly helpful in the context of determining the risk posed by the Applicant holding a firearms licence or permits. Mr Kruger-Davis spoke to the Applicant on one occasion and did not consider any documentation in conducting his risk assessment of the Applicant. There was no reference in Mr Kruger-Davis' report to any of the facts supporting the charges of "unsafe keeping of firearms". In those circumstances the Tribunal places no weight on his superficial opinion that the Applicant "does not pose a threat to himself or the general public".
Ms Easson's report also does not assist the Tribunal in determining the risk to public safety posed by the Applicant regaining his firearms licence or permits. Ms Easson treated the Applicant for PTSD following his arrest and imprisonment in 2020. There is no indication how often or many times the Applicant saw Ms Easson for treatment, or whether the treatment was ongoing, and it appears no documents were provided to her for the purpose of conducting her assessment of the Applicant, providing her opinion or writing the report. The sole reference to external input to her opinion was: Since I also know his wife and daughter through other circumstances, and have learned that Luke's account of the events of the night accords with that of his wife Angelique's, I have no trouble accepting Mr Borton's account. Both Mr and Mrs Borton impress me with their integrity, law abiding nature and cautious natures.
In circumstances where Ms Easson's opinion of the Applicant is coloured by her relationship with his wife and daughter, and she has no independent supporting evidence of the matters described to her by the Applicant, I give no weight to Ms Easson's report in determining the risk posed to public safety should the Applicant retain his firearms licence and permits.
The Applicant's representative obtained a letter from the Director of Badlands Sporting, Hunting and Tactical Supplies dated 4 May 2021, which addressed the Applicant's knowledge of his obligations under the Act and Regulations, including safe storage of firearms. The Applicant was cross examined about his knowledge of safe storage requirements by the Respondent at hearing. Both the Badlands letter and his evidence at hearing suggest that the Applicant now knows that he should only have one firearm out of the safe at a time. The Tribunal accepts this evidence.
The Tribunal does not accept, however, the implication that the Applicant was unaware of or confused by the safe storage requirements as at 29 March 2020. His responses to police when questioned about his safe storage obligations (as referred to above at 40) suggest that he was attempting to justify his non-compliance with those requirements, rather than being unaware of the requirements. The fact that he hid the ammunition for the .22 rifle in his closet demonstrates his awareness of the risk to public safety posed by the ammunition, and knowledge that it should have been stored in the firearms safe.
The character references of Howard Smith, the Applicant's wife and daughter, Ngaire Burley and the Applicant's general practitioner Dr Campbell are of limited assistance to the Tribunal in determining any risk to public safety. They were each prepared prior to the Applicant's severity appeal for the purpose of those criminal proceedings, and do not make any specific reference to the questions for determination in this Tribunal. The Tribunal accordingly gives those references and the opinions of the Applicant contained within them minimal weight.
Howard Smith and the applicant's wife, Angelique Borton, could have each provided corroborative evidence for the Applicant in relation to the events of 29 March 2020. However statements made in each of their references and Angelique's response to questioning by police contradicts the Applicant's account of events. Mr Smith's reference included his observation of the Applicant on 29 March 2020 repairing an air rifle that was returned to the Applicant's firearms safe when they left the garage to have lunch, however there is no information as to which rifle he saw, and he makes no mention of providing the Applicant with any other item, including no evidence supporting the gifting of ammunition to the Applicant, contrary to the Applicant's evidence at the Tribunal explaining why ammunition was located outside of his firearms safe. Angelique's comments in her reference that "he was always insistent that things must have a place and must be kept in that place, nothing should be lying around" and "he would always return guns to the safe, I never saw the guns around the house unless he was working on them in some way" contradicts the Applicant's evidence about hiding the ammunition and placing a firearm in the closet, and a rifle being located in the study. Angelique's statement to DSC Blackbourn that her husband had been inside watching TV with her all night also directly contradicts the Applicant's statements during his interview with the police, and his evidence before the Tribunal.
In addition to failing to provide the Applicant with any evidence that he does not pose a risk to public safety by retaining a firearms licence and permits, the lack of corroboration and contradictory evidence from individuals capable of supporting the Applicant's evidence at hearing further supports the Tribunal placing little weight on, or otherwise not accepting, the Applicant's evidence.
The references from the Applicant's other neighbours, Suzanne and Peter Wood and Michael Kemmis, appear to have been prepared for the purpose of the Tribunal hearing but do not refer to appropriate awareness by them of the nature and extent of the Applicant's conduct, the criminal charges, or the issues before the Tribunal for determination. As character references they are therefore of limited use, in line with authority in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at paragraph [49]-[53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, where the Appeal Panel said: [40] Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of negative history, they must be approached with caution.
The statements contained in the neighbours' references to the effect that they did not hear any shots fired on the night of 29 March 2020 supports the Tribunal's finding that the Applicant did not discharge his firearms that night, but the Tribunal does not place any weight on that evidence in reaching its finding.

Conditional release order

The Respondent had a discretion to revoke the Applicant's licence and permits under s24(2)(a) of the Act because he was subject to a conditional release order in relation to a firearm offence, pursuant to section 11(5)(d)(iii) and section 29(3)(d)(iii) of the Act. As discussed in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [59]: "The legislature has provided for differential treatment in these circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way.
The Tribunal agrees with the Respondent's submission that it would be anomalous to allow a person such as the Applicant to continue to hold a firearms licence or permit which another person would be refused in circumstances where they are presently subject to a conditional release order: Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at [23] Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 at [10] and Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at [28].
However the Applicant's conditional release order, on the evidence before the Tribunal at the time of hearing, was due to expire on 13 October 2021. The Tribunal therefore does not consider the conditional release order relevant to its determination.

The public interest

On the evidence before me, I agree with the Respondent's submission that there was no justification for the Applicant's failure to store his firearms and ammunition in a safe manner at the time that the Police attended his property.
The Applicant submitted that the core issue for the Tribunal's determination was "whether Mr Borton is 'Safe', within the meaning of the definition ascribed to that word from countless other tribunal matters", and that his expressions of remorse and sorrow for the breach, and the fact he was apologetic supported the Tribunal so finding.
The Applicant relied on Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 (Uzelac), Bryant v Commissioner of Police, NSW Police Force [2018] NSWCATAD 222 (Bryant) and Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 (Jameson) in support of his submission that the Respondent's decision to revoke his licence and permits should be set aside because the Applicant and his conduct did not pose a risk to public safety.
Uzelac at [19] sets out the relevant considerations for the Tribunal to determine whether there is a risk to public safety: Relevant considerations include: · the reason for failing to store the firearm safely; · the length of time the firearm was not stored safely; · the potential or real danger posed by failure to store the firearm safely; · the person's previous conduct in relation to storage of firearms and any related matter; · the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and · the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25]) · in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50) · the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37].
The Tribunal agrees with and adopts those considerations as relevant to its determination in these proceedings, noting that the fact that the Applicant has committed firearms offences weighs heavily in determining risk. The Applicant submitted: In this case the reason was to prepare adjustment settings for the scopes of the firearms and to affix them, as well as repair one of them, so the firearms had only been out of safe storage for a short period of time, and never far from the applicant, therefore limiting potential danger. Mr Borton has no prior misconduct for anything, let alone safe storage, he now has a more thorough understanding of his obligations. We would submit that in relation to the first three considerations that they do fall within the 'trivial or excusable' region and that there was less likelihood of a risk to public safety.
I disagree with the Applicant's submission, because I do not accept the Applicant's explanations for why the firearms and ammunition were out of safe storage, and I do not accept that the rifles were out of safe storage for a "short" period of time. There was a real and potential danger posed by his failure to properly store the firearms and ammunition safely, of which he was sufficiently aware so that he hid the .22 rifle and its ammunition in a closet. The breaches of the Act which occurred were fundamental, not trivial or excusable.
In Bryant the applicant had left a rifle in a cupboard for two days, with ammunition present, also unsecured, nearby. The Tribunal stated at [35]: There is no evidence that Mr Bryant has regularly left his guns unsecured and his uncontroverted evidence is that he had never done anything like this before. I accept Mr Bryant's statement that he has "learnt his lesson" and consider that he will take appropriate steps to secure his firearms in the future.
My findings in relation to the Applicant's conduct in these proceedings are not analogous to those made in Bryant. There was no evidence or submission to the effect that the Applicant's conduct on 29 March 2020 in failing to securely store the two rifles and ammunition was a rarity or a "one-off". The Applicant's confessed lack of understanding of his safe storage obligations and the explanation he gave police for having a rifle in his closet would rather support a finding that he was in the habit of having a firearm in the house, with ammunition, in case he "wanted to get up and go and shoot a bunny".
I accept that the Applicant has "learnt his lesson" in that he now understands that he should only have one rifle out of safe storage at a time for the purpose of maintenance, and I will accept that he has reviewed the safe storage requirements with Mr Kirwan. However there is no persuasive evidence before the Tribunal that the Applicant's understanding of his obligations and the legislative requirements has been tested, that an appropriate risk assessment in relation to the Applicant's future conduct has been conducted, or that returning a firearms licence and permits to him would not pose a risk to public safety.
In Jameson, the applicant placed a number of pistols in the boot of his vehicle the night before he was to go shooting, which were subsequently stolen. The Tribunal set aside the decision to revoke his firearms licence on the basis of evidence demonstrating "persuasive and relevant circumstances that take his matter outside the ordinary case", including at [76]: - his unblemished prior record in relation to firearms and the general law; - his high reputation and standing in the community and in pistol shooting circles; - his security precautions before the offence exceeding those required by law; - his contacting the police immediately on becoming aware of the theft, accepting full responsibility and assisting the police by supplying his CCTV footage enabling the wrongdoer's apprehension and recovery of three of the guns; - his acute remorse and contrition over the event, attested to by all witnesses, together with the sobering experience of being deprived of his licence and unable to engage in his favourite sport for over a year, which will have reinforced the lessons involved; - his upgrading of the already strong security precautions at his house; and - the psychological evidence concluding that in the future he is likely to be hyper-vigilant and obsessive over firearm security precautions and is highly unlikely to reoffend. He suffers from no mental disorder and functions fully appropriately in normal society.
The evidence in these proceedings does not similarly persuade me that the return of the Applicant's licence and permits would result in "virtually no risk" to public safety. Mr Bryant's conduct in immediately contacting the police, accepting full responsibility and providing assistance to them, and the strength of his evidence and those supporting him distinguishes that decision from the facts of these proceedings, where the Applicant has provided contradictory evidence of his conduct and the reasons for it, contested the criminal charges, and I am not satisfied on the evidence before me that the Applicant would not again pose a risk to public safety with respect to his use and storage of firearms and ammunition.
I accept that the Applicant has a genuine interest in sport shooting, including the collection and maintenance of Category A firearms, and that the activities associated with this interest are important to him. However in considering whether it is in the public interest for the Applicant to hold a firearms licence and permits, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. On the basis of the evidence before me, I find that it would be contrary to the public interest for the Applicant to continue to possess a firearms licence or permits.
The correct and preferable decision is therefore for the Tribunal to affirm the Respondent's decision.

Order 1. The respondent's decision is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 23 November 2021

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Judgment (12 paragraphs)

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Cases Cited (19)

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