CSC v Commissioner of Police

Material before the Tribunal

1. The material before the Tribunal comprised: 1. statement by CSC dated 14 September 2015 received 18 September 2015; 2. three bound volumes of documents, described as Applicant's Evidence Books 1 of 3, 2 of 3 and 3 of 3; 3. two photographs of written numbers and one letter (the Characters) from the Applicant. In one photograph a key is shown next to the Characters and in the other a ruler showing imperial and metric measurements is shown next to the Characters; 4. a response from the Respondent to CSC's wife in relation to her request for access to certain information; 5. a USB memory stick filed with the Tribunal on 23 April 2015; 6. a second USB memory stick filed with the Tribunal on 27 October 2015 and an index of the content of that USB stick received 14 March 2016; 7. from the Applicant on 21 May 2015 an unbound bundle of 10 pages of excerpts from statements, some pages were signed, some were unsigned; pages 14, 16, 18, 20 and 22 of what is said to be a transcript of interviews with a named person (Teenager CC) at 1:20 am on 1 September 2013, and 18 pages said to be of iPod textings; 8. written submissions from CSC for himself and the young person: 1. (AS1) undated, received 15 January 2015; 2. (AS2) undated, received 9 March 2015 attached to which is page 1 of a Facts Sheet of the Respondent dated 24 April 2014 and a letter from CSC to the Firearms Registry dated 19 November 2013; 3. the Applicant's closing submissions (ACS) with a covering letter dated 19 April 2016 received 21 April 2016; 4. (AS3) undated, received 2 June 2016; and 5. (AS4) dated 7 June 2016 received 8 June 2016; 1. a Criminal History Bail Report in respect of CSC filed 30 January 2015; 2. section 58 documents in respect of the Applicant dated 28 April 2015 (sic) filed 14 April 2015; 3. section 58 documents in respect of the young person 13 May 2014 filed 16 May 2014; 4. an undated bound bundle of documents described as Commissioner's Evidence filed 29 June 2015 in respect of the Applicant and the young person. These documents include a transcript of at least part of the interview by police of CSC and his family on the evening of 31 August 2013. An index to these documents was filed 5 November 2015; 5. a bundle of seven handwritten pages by the policewoman filed 27 October 2015; 6. a memorandum on local Shire Council letterhead from Penny Craig, dated 16 December 2014 filed 27 October 2015 attached to which is a Technical Direction dated July 2014 headed "Traffic management and road safety practice"; 7. a photograph of part of the front of the Premises filed 25 February 2016: 8. a copy of a statutory declaration by Penelope Craig declared 9 November 2015 filed 24 February 2016; 9. a copy of a statutory declaration by Pamela Ann Danaher made 9 November 2015 filed 24 February 2016; 10. a statement of Senior Constable Douglas Nyholm made 19 December 2015; 11. a bundle of four local council newsletters respectively dated from June to September 2014 inclusive; 12. written submissions from the Respondent: 1. (RS1) described as Respondent's Submissions in respect of CSC undated received 8 January 2015; 2. (RS2) described as Respondent's Submissions, undated, received 24 February 2016; 3. (RS3) being an undated letter headed Additional information and submissions sought by Senior Member Isenberg from the Respondent to the Tribunal received 24 February 2016 4. the Respondent's undated closing submissions (RCS) described as Respondent's Submissions, received 17 May 2016. Attached to RCS are several documents; and 5. (RS4) a facsimile dated 1 June 2016 received 2 June 2016;
2. Oral evidence was given by the policewoman, Senior Constables Gregory Pettigrew and Douglas Nyholm, Detective Kelly, CSC, CSC's wife and Teenager CC.
3. Oral submissions were made during the hearing by both CSC for himself and the young person and by Mr Zoppo for the Respondent.

Issues before the Tribunal

1. The two decisions made pursuant to the internal review, being the revocation of the Licence and the refusal of CSC's application for a permit to acquire a firearm, are the decisions being reviewed by the Tribunal (the Decisions). The application by the young person is dealt with in a separate Tribunal decision

Jurisdiction of the Tribunal

1. Relevant legislation concerning the licensing, use and safekeeping of firearms is found in the Firearms Act 1996 (the Act) and the Firearms Regulation 2006 (the Regulation). All references in these reasons to sections are to sections of the Act and all references to clauses are to clauses of the Regulation unless otherwise stated.
2. Section 75(1) provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of a decision by the Commissioner to revoke a licence. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision or refer it back to the Commissioner to be further dealt with.
3. At the commencement of ACS the Applicant submitted: It is the quality of the evidence supplied to the Firearms Registry, that the Member will consider against the appropriate laws. This submission exhibits a fundamental misunderstanding of the law and the role of the Tribunal. As stated in the immediately preceding paragraph, and as the Tribunal informed the Applicant during the course of the proceedings, the Tribunal is required to decide what the correct and preferable decision is. The Tribunal has regard not only to the material before the Respondent at the time of the Internal Review, but also any other relevant factual material before the Tribunal, as well as having regard to any applicable written or unwritten law.

Firearms legislation

1. When introducing the Firearms Bill, which became the Act, the then Attorney General, in the Second Reading Speech, stated amongst other matters that New South Wales was implementing "comprehensive, tough new gun laws". He also said: The Firearms Bill represents the toughest controls on firearms ever enacted in New South Wales. The underlying principles and aims of the proposed Act are that the possession and use of firearms is a privilege, not a right, and is conditional on the overriding need to ensure public safety The proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms
2. Relevantly the underlying principles and the objects of the Act, set out at section 3, provide: (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 (c) … (2) The objects of this Act are as follows: (a) … (b) to establish an integrated licensing and registration scheme for all firearms, (c) …, (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, (f)…
3. Part 2 of the Act, comprising sections 7 to 32, provides for licences and permits and includes the following: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (b) … (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant's way of living or domestic circumstances, … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 12 Genuine reasons for having a licence (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. (4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant: (a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason. 13 Category B licences - restrictions on issue Subject to the regulations, the Commissioner must not issue a category B licence to any person unless the person, in addition to establishing a genuine reason for being issued with the licence, produces evidence to the satisfaction of the Commissioner that there is a special need for the person to possess or use a firearm to which licence category B applies. 19 Conditions of licence (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. (2) Without limiting subsection (1), each licence is subject to the following conditions: (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act, and … (3) A licence is subject to such other conditions as may be prescribed by the regulations. 22 Suspension of licence (1) The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving personally or by post on the licensee a notice: (a) stating that the licence is suspended and the reasons for suspending it, and (b) requesting that the person provide the Commissioner with reasons why the licence should not be revoked. … 24 Revocation of licence … (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) …or (d) for any other reason prescribed by the regulations. (2A) … (3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it. (4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. … 39 General requirement (1) … (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

The Respondent's reasons for the Decisions

1. The immediate background to the Decisions is the suspension of the Licence. The Suspension Notice was signed by Detective Kelly whose stated reasons for the suspension were: have been served with a Provisional Personal Violence order in relation to an incident involving threats made by (name of the young person) using a firearm against the policewoman, a serving member of the NSW Police
2. In my opinion Detective Kelly's wording was intended to imply that CSC had been served with a Provisional Personal Violence order. The evidence does not support any such implication. That implication was explicitly rejected in the Respondent's letter to CSC of 17 September 2013.

The Licence revocation

1. The Revocation Notice acknowledged that the Firearms Registry had advised CSC they would prefer to make a decision after the court outcome in respect of his son's matters having been dealt with by the court. Notwithstanding this acknowledgement, and without prior notice to CSC, a determination was made to review the Licence prior to his son's court outcome.
2. The reasons given for the revocation were: 1. CSC's family had easy access to his firearms as the PIN code to the safe was easily identifiable to police upon them entering the relevant room; 2. the police did not mention a key to the safe.
3. Accordingly, based on information that all members of his family and possibly any visitors could gain easy access to CSC's firearms whilst the storeroom was unlocked the delegate was satisfied that CSC had contravened the general requirement for safekeeping pursuant to section 39 (1).
4. Section 39 (1) relevantly provides: (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.
5. The Notice also stated: Given this information and the actions of your son (the young person), I believe concerns are held for public safety should you remain authorised to possess and use firearms by way of a licence.
6. I observe that at the time of the Notice the Licence was suspended. In addition, all of CSC's firearms, weapon parts and ammunition had been seized by the police more than 6 months previously. Section 22(3) provides "A suspended licence does not authorise the possession or use of firearms during the period specified in the notice suspending it." Accordingly, the Respondent must have been aware that at the time of the Notice CSC was not "authorised to possess and use firearms by way of a licence".
7. No evidence was presented to the Tribunal supporting the reason given for expediting a decision to revoke CSC's licence. Having regard to the material before me I find that there was no valid reason for such expedition.

Internal Review reasons

1. These reasons are in two parts. Firstly, in relation to the revocation of the Licence and secondly, in relation to the refusal of the permit to apply to acquire a firearm.

A Revocation of the license

1. The Statement of Reasons included, under the heading "Contravention of the Act (licence)": Part 4 of the Act provides for the safekeeping of firearms ... It has been held that contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act. Your charge of 'Not keep firearm safely-not prohibited firearm/pistol' relates to a police report which states that your firearms safe was accessible to unauthorised persons. … you advised that the room that contains your safe has a door which is locked when your family is not present at your residence. You also state that you can lock the door on a normal basis, with you and your wife as the only ones to have access. Further, you advise that the safe has a key entry and a code entry, to which your son the young person has never had access. (Name of the young person) and his brother also advised police they did not have not access to the firearms or know where the pin code for the cabinet was marked. I accept that your firearms safekeeping has been inspected and approved. I also accept that when police seized your firearms on 31 August 2013, they were stored within an approved safe. However, the police record of the seizure states that you advised police that the storage room containing your safe could be accessed by all family members. Additionally, police observed that the pin code for the firearms safe was written on a wooden support beam inside the storage room. Police state the pin code was easily identifiable to them upon their entry. In those circumstances I find it highly probably that any unauthorised person at the residence (including your wife and any children of reading age) could have easily accessed your firearms in contravention of section 39 of the Act. The safe storage of firearms is critical for public safety. The failure to secure firearms presents the risk that they will fall into the hands of persons who are not licensed or trained in their safe use…. I note that the charges, currently before the court, laid against your son (name of the young person), relate to allegations of misuse of a firearm.
2. I observe that the parties agree that one of the two charges referred to in the last paragraph of the above extract was withdrawn and the other charge dismissed.
3. Under the heading "Not in the public interest (licence)" the reviewer said: …I note that you have held a licence for a relatively lengthy period. Whilst some weight can be attributed to that lengthy history, it is somewhat diminished by the circumstances of your safe storage. However, I believe your contravention is not through intended criminality and I hold no concerns regarding your good character… (my emphasis) The public interest requires that all licensees be aware of and comply with the legislative requirements … because misuse of firearms can result in catastrophic consequences …(the ADT has held that) the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence. In this regard I give weight to your continued assertion that your firearms were not accessible. In my view this demonstrates a lack of understanding that if the pin code to a safe is kept visible near the safe, firearms can no longer be considered inaccessible. I am also not satisfied that you fully appreciate that family members without a licence are 'unauthorised' to access firearms by law, irrespective of whether you believe they can be trusted to not access the firearms. Where a licensee fails to accept responsibility for past failures, the ADT has held that future non­compliance with legislation or future breaches of firearms safety could not be considered unlikely. … The licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum. I believe a risk has been demonstrated regarding your licensing privilege. As a consequence, I agree that your licence should be revoked in the public interest.
4. I observe that in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 DP Hennessy said at [27] and [28]: …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. 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. This principle has been referred to and followed in numerous decisions of both the ADT and the Tribunal.
5. In Haitzler v Commissioner of Police, NSW Police Force [2014] NSWCATAD 60 DP Hennessy held that, although there was a theoretical possibility of injury or death to a person arising from the deliberate or accidental discharge of a firearm she was satisfied that in the circumstances there was "virtually no risk" of such an event occurring. She said at [62] "The existence of a theoretical possibility of injury or death is not sufficient, in my view, to justify the revocation of Mr Haitzler's licence."
6. At [89] in RCS the Respondent referred to Director of Public Prosecutions (NSW) v Wilson [2004] NSWSC 911. At [16] in that decision James J held that the requirement under s39 (1) when properly applied means that a person is guilty of an offence if there was any reasonable precaution to ensure the safe keeping of the firearm which the defendant fails to take.
7. I observe that the Respondent did not refer to the facts or the decision in Wilson. In summary that matter involved an appeal by the DPP against an order of a magistrate who in a reserved judgment dismissed a charge under section 39(1)(a).
8. Mr Wilson gave evidence that while attending an unexpected football training session he had put his rifle in a carry bag behind the driver's seat of his utility, moved the seat to cover the rifle and also covered it with a few jumpers. The bullets and bolt had been removed from the rifle and placed in an unlocked glovebox. Subsequently he realised the rifle and ammunition had been stolen from his utility. The next day he reported the theft to police.
9. James J considered various possible precautions which counsel for the DPP had suggested could have been taken and were not taken. In the circumstances His Honour held that the precautions which the DPP proposed were not reasonably practicable. His Honour held that it had not been established that the Magistrate was necessarily wrong in forming his conclusion that he was not satisfied beyond reasonable doubt that there was any other reasonable precaution which the defendant had failed to take.
10. I accept the Respondent's submission that the burden of proof in criminal proceedings is beyond reasonable doubt and that there is no similar burden of proof in these proceedings. However, I also observe that section 39 requires that a person must take "all reasonable precautions". In my opinion, if Parliament had intended that a person who possesses a firearm must take "all possible precautions" rather than "all reasonable precautions" to ensure the safekeeping of the firearm then section 39 would reflect that intent.

B The refusal of the application for a permit to acquire a firearm

1. In the reasons in the Internal Review the delegate said: In accordance with section 31(3)(a) of the Act, a Permit to Acquire a Firearm (PTA) must not be granted unless the applicant holds a licence or permit authorising the person to use or possess the firearm concerned. As your Category AB firearms licence is revoked, your PTA application cannot be granted.
2. CSC does not dispute that at the date of the decision in the Internal Review in respect of the application for a permit to acquire a firearm the Licence had been either suspended or revoked depending on whether the revocation of licence or the refusal of the application for a permit was dealt with first. In either case, at the time the refusal decision was made, CSC did not hold a relevant licence or permit authorising him to use or possess the firearm concerned.
3. Relevantly, the Act provides: 31 Permits to acquire firearms (1) A person who is the holder of a licence or permit may apply to the Commissioner for a permit to acquire a firearm. (2) A separate permit to acquire is required in respect of each firearm to be acquired by the holder of a licence or permit. (3) The Commissioner must not issue a permit authorising a person to acquire a firearm: (a) unless the person is the holder of a licence or permit authorising the person to use or possess the firearm concerned, and …
4. Accordingly, I find no error in the decision to refuse the application for the permit.

The evidence and the background behind the issues concerning the revocation

Security system at the premises and the door to the storeroom

1. In his oral evidence Detective Kelly said that he did not observe any security devices at the premises. He did not recall whether the storage room was locked when he arrived at the premises on the evening of 31 August 2013. Detective Kelly also acknowledged that his reason for attending the premises did not include searching for security devices.
2. Both CSC and CSC's wife said the security system at the premises, including multiple cameras and motion sensors, were installed before the safe was installed. They both also gave evidence that on 31 August 2013 prior to their departure from the premises, before the time of the Event, several internal doors were locked including the door to the storage room. CSC's wife's evidence was that the internal doors to several rooms including the storage room would only be unlocked when access was required to the relevant room.
3. I am aware of no reason why I should not accept this evidence from CSC and CSC's wife. I find that at the time of the Event and from no later than the time at which CSC and CSC's wife left the premises before the Event, until sometime after the Event, the door to the storage room was locked.

The PIN code

1. The Respondent submitted that on balance, CSC writing the code in the room in which the safe was located is evidence that CSC breached his section 39 obligations. The Respondent also submitted that CSC refused to acknowledge that recording the code compromised the security of the safe.

Knowledge of the code and its location

1. In the narrative in COPS event E 52500921 Detective Kelly wrote: The PIN code was easily identifiable to Police upon entry into the storage room.
2. Words to the effect of that sentence were repeated and relied upon to make administrative determinations against each of CSC and the young person. Those words or words to that effect appeared in: 1. the application prepared by Detective Kelly on 1 September 2013 to be heard at court for an Apprehended Violence Order against the young person; 2. a letter dated 17 September 2013 from the Firearms Registry to CSC rejecting the reinstatement of the Licence, which had been suspended by Detective Kelly; 3. the notice dated 29 October 2013 refusing the young person's application for a Minor's Firearm Permit; 4. the Notice of Revocation of CSC's firearms licence; and 5. the Internal Review statement of reasons of 4 March 2014.
3. Under cross examination before the Tribunal Detective Kelly said: 1. on the first occasion he entered the storeroom he was accompanied by Detective Senior Constable Gray, while Sergeant Robertson and Senior Constable Churchin were at the door; 2. he was in the room for up to 20 minutes on that occasion; 3. during that 20 minute period no officers brought the PIN code written on the wall to his attention nor did he see the code; and 4. sometime after moving to another room he asked where the code was kept.
4. CSC said: 1. he thought that his eldest son may be aware of the code because he had helped him set up the safe. Subsequently he acknowledged that it would not be acceptable for his son to have known the code at the city time. 2. he wrote the code for the safe on a beam in the same room as the safe. 3. he deliberately did not write the code down in an order, it was broken up. By "broken up" he meant that numbers were separated from each other and from a letter. He wrote the code in such a way that it would not be easily perceived as a code. 4. he went to considerable lengths to break up the code and hide it at the time that he wrote it on the wall. He wrote the code in a part of the room that was in darkness even when the room light was on and the code was hidden behind some objects and very hard to see.
5. CSC acknowledged that if the numbers and letter were entered into the safe in the order in which they appeared on the wall from left to right and from highest to lowest that would unlock the safe.
6. Each of the young person, the eldest son and CSC's wife gave evidence that they were not aware of either the code or the location at which it had been written.
7. In her statement of 31 August 2015 CSC's wife said: 3. The gun safe was located in a room we call our "storage room". I have swept & cleaned, and accessed firewood from that room on many occasions. I had no knowledge of any numbers or letters being written on any part of the storage room.
8. CSC's wife also said that she became aware of the location in the storage room of the code for the safe on 1 September 2013 when the AVO was served. She did not know about it before that.
9. Detective Kelly made a statement on 22 June 2015 which is at page 8 of the Commissioner's Evidence. That statement includes the following phrase made in relation to CSC: …there is nothing to suggest that (the young person) or any other child in his family was not aware of the existence of the pass code inscribed on the wall…
10. Two pages earlier in the 22 June 2015 statement, at [5] and [6], the Detective noted that the code was written by CSC on the wall and that CSC said "no-one knows that that's been written up there".
11. I observe that Detective Kelly acknowledged to the Tribunal that his statement was incorrect. No reason was provided to the Tribunal for Detective Kelly to make the statement.

Was the code hidden

1. In his statement CSC wrote: Det KelIy then asked where I keep the code. I said I keep it written on a piece of paper hidden in my bedroom, I said I also keep it in a broken up way, unrecognizable and in a hidden place. Det Kelly seemed like a child just given a birthday present. I clearly told him, it was there for my personal use in the event of an emergency. In effect the code was a nonsense, because the key was needed to make the guns ultimately operable. When we walked back into the store room, I walked up to the wall near where the numbers were situated, and pointed directly towards their position I specifically remember Det Kelly squinting and asking again, "Where!' I moved items out of the way, so the numbers were a little more visible. Even after that, Det Kelly could not see the numbers thru the camera and even though the light was on in the room, he asked a colleague to hold a torch...
2. During his oral evidence CSC said that the first time he entered the room with Detective Kelly and other police he had the code with him on a piece of paper. CSC's oral evidence was that he did not leave the room to obtain the code.
3. During CSC's cross examination of Detective Kelly the following was said: Q second time entered room was to show you where writing on wall? Q when we went back into the storeroom and I was going to show you where I'd written the code or the scribblings I distinctly remember you asking me "where" do you remember that? A when you're talking about scribblings are you talking about the letters and the numbers that made up the pass code to the gun safe? Q yes A well I'd have to agree there and say that I had to ask you to show me where you had that written down, yes. Q what I'm asking you Mr Kelly is when I pointed in close proximity to where that letter and numbers were, you had difficulty seeing them and I distinctly remember you saying "where". Do you remember saying "where"? A I do not remember saying "where" but I'm not going to say that I said anything else.
4. I observe that the transcript provided by Detective Kelly of his interviews with various members of CSC's family shows Detective Kelly saying: "So we just walking back into the storeroom where the firearm cabinet is yeah"
5. The transcript shows that Kelly uses the word "where" on one occasion in that sentence and in my opinion the word transcribed as "yeah" is out of context. It would be more likely that after saying "so we're just walking back into the storeroom where the firearm cabinet is" Detective Kelly then said "where?" meaning "where is the code"?
6. The transcript shows that "yeah" is immediately followed by what is effectively an answer by CSC I've scribbled it just up in there and it's separate so that it doesn't really relate to anything.
7. The above segment from the transcript is inconsistent with Detective Kelly's repeated statement "The PIN code was easily identifiable to Police upon entry into the storage room."
8. The recording of the Tribunal hearing included the following questions to and answers from Detective Kelly: Q CSC says that when you entered the storeroom after having been told that he had written the PIN number on the wall at some stage you said where…. Q when you entered the room after you were told by CSC that he… could you see the PIN code from where you were standing? A no. Q … is it the case that CSC gestured or pointed to the location? A that's correct. Q And when he did that did you, could you see the PIN code from where you were standing? A no Q and did you have to walk up closer to the area to see the PIN code? A I had to be led to that area by CSC. Q and when did you first see it? This is before you took photos don't worry about the photos that you took.? A the first time I saw it was when CSC led me to that area and I believe it is, we may have had to use a portable torch or something similar to highlight it. Tribunal Detective is it correct that you needed to use a torch to see the numbers? A CSC directed me to where the numbers were. He took me up to the numbers I could see the numbers and letters. I could see where he indicated there were letters and numbers broken up the pass code I could see that. To define it I did use a torch to see exactly what the letters and numbers were for myself. T Could you read them distinctly or could you see that there were letters and numbers? Did you need a torch in order to read the letters and numbers? A That's correct
9. CSC's consistent evidence is that it was necessary for him to move items in order for Detective Kelly to see the code in the storeroom. Detective Kelly's evidence is that he could not recall whether anything had to be moved in order for him to clearly read the code. Having regard to the material before me I accept CSC's evidence

Ease of locating and identifying the code.

1. Having regard to the material before me I find that Detective Kelly's repeated statement "The PIN code was easily identifiable to Police upon entry into the storage room" has no evidentiary basis and is contrary to the evidence before the Tribunal including Detective Kelly's oral evidence. Accordingly, I find that the reliance on that statement by the Respondent and the Respondent's delegates, as referred to in these reasons, was misplaced.

Keys for security

1. In the recorded interview of 31 August 2013 CSC said that he keeps the main gun safe key safely and he and his wife are the only ones who know the location of the key.
2. Detective Kelly said CSC's wife was next to him, in close proximity, when CSC make the above statement.
3. Both CSC and CSC's wife gave sworn evidence to the effect that CSC's wife was not present when CSC made that statement.
4. In CSC's wife's statement of 31 August 2015 she said that at no time up to and including the Event did she know the whereabouts of keys for the gun safe. At no time was she asked by Detective Kelly whether she knew the location of the gun safe key. She had no knowledge of how to access the gun safe.
5. Subsequently CSC conceded that it was not appropriate for his wife to be aware of the location of the key.
6. I accept CSC and CSC's wife's evidence in preference to that of Detective Kelly.
7. CSC's evidence was that he bought and installed a safe which complied with all relevant requirements. He also had substantial additional requirements such as fitting trigger locks on all firearms. Inside the safe was a separate compartment containing bolts and ammunition. The separate compartment and the trigger locks were accessed with separate keys which were hidden in another room. No evidence to the contrary was presented to the Tribunal.

General compliance with safe storage obligations

1. In RCS the Respondent at [125] and [126] relied on a statement by Hennessy DP in Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127: 125 In Phegan…, Deputy President Hennessy undertook a review of the various Tribunal decisions reviewing decisions of the Commissioner to revoke or not issue a firearms licence when the licensee or applicant has breached storage requirements. At paragraphs 19 of her decision the Deputy President stated; "19 These decisions make it clear that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case". 126 There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision to revoke the First Applicant's licence.
2. The Respondent did not provide the context of the 11 tribunal decisions reviewed by Hennessy DP which led to the statement of the above principle. The Commissioner was successful in eight of the decisions. The background of those decisions as summarised by Hennessy DP and her description of the matters considered are as follows: 17 Cases in which the Tribunal affirmed the Commissioner's decision include: · Fielden & Fielden v Commissioner of Police [2000]NSWADT 156, where the police found four guns wrapped in a blanket under Mrs Fielden's bed; · Cleofe v Commissioner of Police [2001] NSWADT 2 where a security guard left a firearm in an unlocked drawer; · Cusumano v Commissioner of Police [2001] NSWADT 50 where police found several firearms stored in the top of a bedroom wardrobe; · Kudrynski v Commissioner of Police [2001] NSWADT 101 where Mr Kudrynski had a shotgun and ammunition stored in a sleeping bag in a car en route to Melbourne; · Polyzogopoulos v Commissioner of Police [2001] NSWADT 166 where the police found a firearm in a leather cover in a wardrobe; · Turner v Commissioner of Police [2001] NSWADT 169 where firearms were found inside a built-in wardrobe; · Federici v Commissioner of Police 2001 NSWADT 183 where the locked steel box containing three rifles and a shotgun was not attached to any permanent fixture; and · Peardon v Commissioner of Police [2001] NSWADT 188 where police found two rifles in a wardrobe and another rifle and shot gun disassembled and wrapped in bed sheets. 18 … 19 These decisions make it clear that for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case. 20 Mr Phegan failed to store firearms and ammunition safely in a situation where one of his children accessed, loaded and fired one of those firearms. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. There are no extenuating circumstances in this case which would justify the Tribunal setting aside the Commissioner's decision to revoke Mr Phegan's licence
3. The decision in Phegan is distinguished from the present matter in that none of the eight matters described by Hennessy DP in which the Commissioner was successful, and which led to the principle relied on by the Respondent, were firearms stored in an appropriate securely fixed and locked gun safe as in the present matter.
4. CSC confirmed that that it would not be acceptable for his wife to have access to the safe keys. In order to comply with current legislation, he tried to understand what the storage requirements were and maintained the firearms in a disabled state.

The District Court findings and reasons

1. Relevant excerpts from Her Honour's reasons in the District Court proceedings, at pages 17 and 18, are: The appellant says the guns were behind locked doors, four video cameras were installed monitoring the area with movement alarms, deadlocks had been applied to the entry door to the area where the safe is located. Had the gun safe been accessed, the guns were secured within the safe, they also had trigger locks, other locks were installed to prevent access to the magazines and the ammunition. In the opinion of the appellant, all reasonable steps had been taken to secure the firearms and accord with the requirements of his licences. The safe had an electronic code in order to access the safe, the code was written on a piece of paper, which he went and obtained to enable police to have access to the safe. It was apparently also written on a wall in the vicinity of the safe. When I say "the vicinity of the safe", it was not immediately beside the safe; it was, I think the evidence was, eight to 10 feet away from the safe. It was certainly in an area which was dimly lit and not readily accessible. The appellant was fully cooperative with police when they requested his permission to enter the premises to inspect whether his firearms were kept safely. Indeed, he went so far as to invite them into the premises, and I infer that's why there was no contest, at the Local Court as to the legality or otherwise of the entry of police. The police officer, during cross-examination at the Local Court, stated he did not notice any writing or scribbling on the pillar in the vicinity of the safe, and no other officer brought it to his attention. However, from perusal of the cross-examination in the lower court, he would not agree, but for the actions of the appellant, he would not have noticed the writing on the pillar. His purpose of entering that storeroom was to seize the firearms for the purpose of another investigation relating to the appellant's son unrelated to this matter. The officer could not recall if any items were removed by the appellant to enable the writing on the wail to become visible. From the video played on this appeal, it is clear that the security measures which were in place would have made access to the area where the gun safe was located extremely difficult. The area to be passed through where the writing was on the pillar was in total darkness. On my viewing of the video, a light source, such as a torch, would have been necessary to walk through that area. The writing on the pillar was certainly not visible immediately without any other light source. The appellant is seen to remove boxes to enable the writing to be exposed if not seen. From the cross-examination of the officer in the Local Court, he would have appeared to have been a reluctant witness, reluctant to make concessions, and indeed the magistrate at one point had to intervene in order to require him to answer questions being put to him on behalf of the appellant. The magistrate made no findings as to the credit of the police officer as a witness. The test is whether all reasonable precautions were taken to ensure that the firearms were kept safely. It is for the Crown to prove its case and to do so beyond reasonable doubt. it is not for the appellant to prove anything at all. The Act requires owners to take reasonable precautions to ensure that the firearms are kept safely. It is from the Crown to prove that the firearms owner did not. On the evidence before me. I find that the Crown has not proved that the appellant-did not take all reasonable precautions to secure his firearm safely. The only matter which is relied upon is the inscription on a wall of some figures and letters, which are said to amount to the code to access the safe. Even if the safe had been accessed, the firearms were not readily accessible or able to be used because of the extra steps taken by the appellant, which increase what I find to be their safekeeping. I find that the Crown has failed to satisfy me that the appellant did not take all reasonable precautions in those circumstances, were it not for the appellant providing the location of the code and informing police what the scribbling amounted to. Clearly, the police would have been none the wiser.
2. The Respondent submitted in RS1 that the Applicant had been found guilty by a Magistrate in Local Court proceedings of having contravened the Firearms Act in relation to the safe storage of firearms and "The Local Court magistrate found the Applicant guilty after a hearing of all of the available evidence." In RCS, the Respondent submitted at [44] that the District Court's decision was based primarily on the transcript of evidence before the Local Court. "It is apparent that the Police 'brief of evidence' … was not before her Honour." The Respondent appears to have overlooked his earlier submission that the Magistrate had heard all of the available evidence, and I assume had made appropriate references to relevant evidence in the reasons for his decision, which formed part of the Local Court transcript before the District Court.
3. At [47] the Respondent submitted …" It appears that she (Her Honour) may have misunderstood the facts in the matter…" The Respondent then submitted: …her Honour's finding did not extend beyond a finding that the Crown had not been able to satisfy her to the criminal standard that the First Applicant had committed the offence. It was not a positive finding that the First Applicant had taken 'all reasonable precautions' as required by s39 (1)".
4. I have had regard to the Respondent's submissions. I have also had regard to the transcript of the Local Court proceedings and decision and the references in the District Court transcript to Detective Kelly, and the reasons for the District Court's finding when it upheld the conviction appeal and dismissed the charge against CSC.
5. On multiple occasions Detective Kelly made a statement to the effect that the code was easily identifiable to police upon entry into the relevant room. The statement was repeated and relied upon by the Respondent's delegates in their reasons for making decisions contrary to the interests of CSC and the young person. I have found that there was no evidence in support of the statement. During his oral evidence to the Tribunal the statement was withdrawn by Detective Kelly. With respect I agree with the following statement in Her Honours reasons: were it not for the appellant providing the location of the code and informing police what the scribbling amounted to. Clearly, the police would have been none the wiser.

Notification of change of residence and notification of change of location of storage of firearms

1. The Respondent submitted that CSC did not notify the Commissioner of his change of residential address nor did he notify the change of location of stored firearms within the statutory time limit.
2. CSC and CSC's wife both gave evidence that their change of residential address took place over a period of time, not at a particular point in time. I am not satisfied as to the precise date on which the change of residential address occurred as I do not have sufficient information to make a decision. No corroborating evidence was put before the Tribunal by either party such as a change of residence date for electoral roll purposes or a change of date for the purposes of a driver licence. Accordingly, I make no finding as to whether CSC breached his obligation in relation to the notification of change of residential address prior to the suspension of his licence.
3. CSC's wife's evidence was that the safe was installed in about April 2013 and the firearms were transferred from their former residence to the premises sometime after the safe was installed.
4. I referred above to CSC saying he could not recall notifying the Commissioner of a change in the storage location of his firearms. Subsequently he said the safe was installed in the premises in about April 2013 and his firearms were initially relocated to the safe during June 2013. The Respondent attached to RCS, after the hearing, a Change of Safe Storage notice received by the Respondent on 4 July 2013. I find that this notice substantially satisfies CSC's obligations to notify a change in the storage location of his firearms.
5. I observe without further comment that the notice of change of safe storage location attached to RCS was not included in the section 58 documents provided by the Commissioner, notwithstanding those documents contained what was said to be "Firearms licence history". No explanation was provided for this omission.

Use of firearms for protecting persons or property

1. The Respondent noted that the Licence was a Category AB licence for the genuine purpose of 'recreational hunting/vermin control' and submitted that a firearm can only be possessed and used for a genuine reason. That does not include the protection of people or property.
2. In RCS at [66] and [67] the Respondent submitted: In the evidence before the Tribunal (the Applicant) told the Tribunal that the number was written near the safe so that he could quickly access the firearms so he could kill brown snakes that were seen in and around his property. The use of firearms to kill native wildlife such as brown snakes is not using firearms for the genuine reason of recreational hunting or vermin control. Such a use is akin to the protection or persons or property and that expressly excluded from being a genuine reason under the Act.
3. I observe that section 12, Genuine reasons for having a licence, relevantly provides: (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. (2) 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 …
4. The Licence was issued for the genuine reasons of Recreational Hunting and Vermin Control pursuant to an application made December 2012.
5. The Applicant's evidence was that prior to installing the safe at the premises there was a considerable issue regarding brown snakes which had been seen at or near the premises and there was no local snake handler.
6. CSC conceded that quick access to firearms to protect his children in the event of a life or death situation was a possibility. However, on further consideration he acknowledged that it would take between seven and 10 minutes for him to access, unlock, reassemble and load a firearm. Accordingly, the idea was not practical.
7. I observe that there was no evidence that at the time CSC applied for the Licence he had any intention to use any firearms for the protection of any person, nor that he had any further intention to use firearms for that purpose.

CSC's general compliance with his statutory obligations

1. The Respondent submitted that on balance CSC did not take all reasonable measures to comply with his statutory obligations and specifically that he had given false declarations. The Respondent referred to the declarations made by CSC in his December 2012 re-application for a firearms licence. One declaration was "I fully understand and can comply with the firearms safe keeping requirements of the Firearms Act 1996 and associated Regulation." Another declaration was "I certify that I can satisfy the legislative requirements…"
2. I asked CSC if he had ever looked at the safe keeping requirements of the Act or Regulation. He said he may have perused them online but did not recall.
3. I asked whether he had looked at the legislative requirements in relation to the statement "I certify that I can satisfy the legislative requirements". CSC's response was that he was not fully aware of them. When asked whether he was aware of them at the time he made that declaration he said "I would suggest not, no."
4. However, CSC also said that he had made enquiries from some friends at work. He understood that he was more than compliant with legislative requirements. He also said that he understood that he had complied with the safe storage requirements by buying an appropriate safe and ensuring that his firearms were appropriately secured.
5. I accept that he believed in December 2012 at the time of his re-application that there was no necessity for him to read the legislative requirements.
6. I also observe that while new applicants for firearms licences are required to undergo a training course, there is no such statutory obligation for persons such as CSC who held firearm licences prior to the 1996 legislative changes.

The Event

1. The catalyst for the action taken by the Respondent against CSC was the Event, its reporting by the policewoman to other police officers, and the subsequent action of certain of those officers.
2. In summary the policewoman's evidence was that she drove her police vehicle out of the rear yard of the police station onto a driveway but not onto the street. She got out of the vehicle, closed the swing doors of the yard and was returning to the vehicle when she noticed a firearm barrel pointed at her from a doorway that was ajar on the ground floor of the premises across the road from the driveway. She entered the driver's seat of the vehicle and could still see the barrel pointed at her through the windscreen.
3. The policewoman then drove onto DD Street, turned right and then turned into EE Street. She tried to telephone other police officers, telephoned a friend (Mr BB) who lived in the town, and drove a few hundred yards away, stopping the vehicle and alighting near her horse paddock. Shortly after that she was joined by Mr BB and Mr BB's wife.
4. The policewoman estimated that the distance from where she was standing to the firearm barrel when she first sighted it was 20 to 25 m, the width of the street. She said she feared for herself and her family. Subsequently she acknowledged that her family was not in town that day.
5. The policewoman initially said that the barrel was dark grey and she had a clear sight of it. She also initially said that the barrel was not in a shadow. She said that the doorway opened inwards, and was between 10 and 15 cm open, closer to 10 cm. She could not see anything of the person holding the rifle, she could only see the barrel. The area behind the door was in darkness, there was no silhouette and she could not identify the person holding the rifle behind the door.
6. The policewoman was asked if the barrel was in sunlight and she said she did not recall it being in a shadow. She was reminded that the doorway she identified was on the ground floor of a two story building with a balcony directly above. She then agreed that the barrel was in a shadow.
7. The policewoman's statement of 9 November 2013 included: … The height of the barrel was consistent with someone standing and pointing it from the shoulder position."
8. In subsequent evidence she said that it would not have been at her husband's shoulder height because he was 6 foot five. She then said that the barrel would not have been at her shoulder height, it would have been at the shoulder height of a shorter person and she did not know where people held their rifles.
9. Initially the policewoman said that the rifle barrel was pointing out of the third door from the right of the premises. Subsequently she said the rifle barrel was pointing out of a different doorway.
10. The policewoman said that the rifle barrel was pointing directly at her. She was asked how she could estimate the length of the barrel if it was pointing directly at her. She did not give a clear answer. When the policewoman was asked whether she could see part of the length of the barrel, she said: Yes I could see part of the side of it from where I was standing. The firearm was pointed at me. The whole positioning was at an angle from where I was and the door is and as it's coming out and I'm sort of my car's here and I'm here so I see it when I get back in the car I could see was pointing at me in my direction.
11. The policewoman was asked "was it pointing through the windscreen at you?" Her reply was "Yes I could see it through the windscreen."
12. The policewoman said that she had served with the police for 16 years and during that time a firearm had never been pointed at her. She had never been involved in a firefight. She is experienced with the personal weapon she carries but has no experience with shooting long barrelled firearms. Subsequently the policewoman said she has carried out firearm inspections and has seized long barrelled firearms.
13. The policewoman's oral evidence included: 1. I saw the barrel as I was walking back to the driver's door and I saw it again it was a second look when I got back in the car - although I saw it, it was like a double take I guess. I was scared for my life. 2. When driving down DD Street I looked in my rear view mirror and could not see any person.
14. The policewoman was asked whether it was possible that there was a double barrel on the firearm. She said "no, not at all".
15. The policewoman's evidence on re-examination included: 1. I looked at the firearm when I was standing beside my vehicle and when I was in my vehicle and when I was taking off with my vehicle it was all very quick; and 2. I accept that my description of the length of the barrel was a guesstimate not an estimate.
16. The policewoman was shown a photograph on page 15 of the Commissioner's Evidence. The photograph included four rifles and a toy double-barreled rifle. When asked which firearm in the photograph most closely resembled the firearm she believed she saw, she identified the firearm second from the left, that is the firearm next to the toy on the far left. She said that she recognised the firearm from "the sight and the size of what the barrel looks like".
17. In earlier evidence the policewoman identified the same firearm. She previously said she had identified it by "seeing the one hole and nothing else".
18. The policewoman said that the plastic toy gun taken to the area near the horse paddock (after the event) was not the plastic firearm in the photograph.
19. When asked the difference between the firearm taken to the area near the horse paddock and the firearm in the photograph the policewoman said the first firearm had a cork hanging out of it, and she believed it had an orange butt. She also said there were 2 round barrels that were quite large in size and there was a cork hanging out the end of it. She described the cork as a white plug.
20. The policewoman was asked whether the toy firearm that the young person brought down to the paddock was double barrel or single? She said it was "double together side-by-side" not "over and under" and there was one plug. The plug was not plugged in to the hole.
21. The policewoman repeatedly stated that to the extent that she could see it, that is protruding beyond the doorjamb, the barrel was 20 to 25 cm long. Her evidence is also that the barrel was pointing directly at her. Subsequently her evidence was that the barrel was pointing directly at her but at an angle.
22. I find it implausible that in what the policewoman stated were effectively two short glimpses, one from outside the vehicle the second from inside the vehicle, while she was scared for her life, she could have made a reasonably accurate estimate of the length of a dark grey cylindrical item protruding from a 10 to 15 cm gap in an inward opening doorway, 22 to 25 m away, in a shadow, without any silhouette. Similarly, I find it implausible that the policewoman could have, with any reliability, distinguished the second barrel from the left of the relevant photograph as compared to the fourth barrel from the left, which is of a similar diameter and has a similar size and placed front sight, or even the fifth barrel from the left which has no front sight but is a similar colour and has a similar diameter.
23. The policewoman's evidence that on the one hand before moving the vehicle from the driveway she observed the barrel pointing at her through the windscreen and that she turned right in DD Street to move towards EE Street is not plausible. Location photographs in evidence show that if the vehicle moved from the driveway onto DD Street and then turned right towards EE Street the vehicle must have reversed onto DD Street out of the driveway. If that was correct then the policewoman could not have observed a doorway of premises across the road through the windscreen when sitting in the driver's seat as she would have been facing the swing door at the rear of the police station which she had just closed.
24. I find that of the four firearms in the photograph in page 15 of the Commissioner's Evidence the only firearm without a telescopic sight is the firearm which is second from the left of the photograph. I also find that the forward sight on that firearm is similar in its location on the barrel and the perpendicular height from the upper exterior of the barrel to that of the rifle which is fourth from the left on the photograph. I also find that the diameter of the two barrels are similar as are their colours.
25. The policewoman said she is certain that the firearm pointed in her direction at the time of the Event was real and did not have two barrels. There is no evidence from any of the four persons in the premises at the time of the Event that any of them at any relevant time either saw or was in possession of a single barrel rifle, whether real or a toy. The evidence is that at the time of the Event the young person was playing with the double barrel toy shown on the far left side of the photograph in page 15 of the Commissioner's Evidence.
26. The policewoman's evidence that the toy gun taken to the paddock by the young person had side-by-side double barrels contradicts the evidence of both the young person and Teenager CC (who was at the premises at the time of the Event) who each identified the over and under double barrel toy firearm which the young person took to the paddock area. There is no evidence of the existence at the premises or elsewhere of any side-by-side double barrel toy gun or firearm at any time by any person other than the policewoman.
27. I observe that before the young person brought the double barrel toy gun to the area near the horse paddock Mr BB had telephoned one of the teenagers at the premises. That teenager had informed him, and he had informed the policewoman that "they say it is a toy gun". The policewoman's statement recounts: I have relayed this to the Sgt from Albury. I have then got off the phone. I was still very upset by the incident and did not believe at any stage that it was a 'toy' gun that had been pointed at me. …
28. Mr BB told the teenager to bring the toy gun to the paddock area where he and the policewoman were situated. The young person, carrying the toy gun, and two of the three teenagers who had been in the premises then walked from the premises towards the paddock area.
29. The policewoman's evidence is that she was frightened. I find her evidence plausible to the extent that she honestly believed that a rifle had been pointed towards her. However, I find the above discrepancies in her evidence so substantial that much of her evidence lacks plausibility in several respects including identifying a rifle in the page 15 photograph from the barrel she said she saw, whether she drove in a forward direction or reversed from the driveway to the street, and her unsupported evidence that the double barrel toy brought to the area near the horse paddock by the young person had side-by-side barrels. The policewoman stated that she was anxious and scared. If this was the case, I find that it may have adversely affected her recollection as to what she saw in the course of the Event and for a period thereafter.

Searching the premises

1. In the section 58 documents in respect of the young person the narrative created by Detective Kelly on the third, fourth and sixth paragraphs of page 6 of Tab 3b (COPS Event E 52500921) appear the words: … The young person's father gave consent for police to search the premises and immediately commenced a search of the house During the search … After the premises was searched…
2. The above words also appear in the version of the same COPS event of the section 58 documents relied on by the Commissioner in respect of CSC.
3. The court application dated 1 September 2013 prepared by Detective Kelly, detailing the grounds on which the applicant for the AVO relied, includes: … A search was conducted at the premises and four (4) firearms registered to (CSC) were seized along with parts and ammunition…
4. In oral evidence Detective Kelly said that a toy gun was handed to him by the young person after a brief search.
5. Notwithstanding Detective Kelly's multiple statements that a search was conducted of the premises, in his re-examination before the Tribunal, Detective Kelly was asked whether any search was conducted at the premises for other firearms, that is firearms other than the firearms in the gun safe opened by CSC, the toy double-barrelled rifle and a toy pistol handed to him. Detective Kelly said "I took what was given to me" and in respect of whether he carried out any search for other firearms he answered "no".
6. Detective Kelly was asked if that was his usual procedure and he answered "I accepted what CSC told me."
7. The statements made by Detective Kelly in the COPS event and in support of the application for an AVO are contrary to the oral evidence he gave to the Tribunal.

Credibility of CSC's evidence

1. I accept that CSC's evidence was given honestly to the extent of his best recollection at the time and that in respect of most of his evidence he was a credible witness.
2. He made errors in some of his oral evidence including saying that he believed his eldest son knew the code and that his wife knew the location of the safe key. I find that CSC tried to answer honestly even if an answer was to his disadvantage. An example of both his honesty and errors in his memory occurred towards the end of the fourth day of the hearing. CSC said that he understood that it was his responsibility to notify the Firearm Registry but could not recall making that notification.

Evidence of Teenager CC

1. From 1:20 am until 2:12 am on Sunday, 1 September 2013 Detective Kelly, accompanied by another Detective carried out a recorded interview with Teenager CC.
2. In the course of the interview Teenager CC said: 1. he was at the premises for some time during the afternoon of 31 August 2013 together with the young person and two other named teenagers; 2. During the course of the afternoon he generally stayed downstairs. (the young person) brought a double-barrelled cap gun down from upstairs. He was walking around in the front area, in the lounge room and was shooting caps in the gun. The gun looked like a shot gun, it had two barrels, one underneath the other and was about half a metre long. He shot inside the house.
3. In oral evidence Teenager CC identified the toy gun that the young person was playing with on 31 August 2013 as the double-barrelled gun shown on the extreme left of the photograph on page 15 of the Commissioner's Evidence. He said it was the same toy gun that he saw the young person take down to show the policewoman at the paddock after the Event.
4. Teenager CC was asked whether he could recall seeing the young person holding a gun with a cork on the end of it. Teenager CC replied "no". Teenager CC did not think that what the young person was holding was a real rifle. It is possible that the young person could have gone somewhere else in the premises and done something that Teenager CC did not see.
5. Teenager CC did not see any weapon in the hotel that day that had side-by-side barrels. Teenager CC could not recall seeing anything that looked like a real weapon that day.
6. Teenager CC said that he knew that the young person's father had a gun - he thought he had 4 guns, he didn't know where they were kept.
7. I observe that while giving oral evidence Teenager CC initially said "I don't think I slept at all that night." and subsequently said he was not asleep at the time of the interview. I also observe that in the course of the recorded interview early in the morning of 1 September 2013 Teenager CC said in response to Detective Kelly's question "you've made this statement of your own free will?" "Yes, but you woke me up at a weird hour though". Detective Kelly also said that he had woken up Teenager CC (in order to conduct the interview).

Likelihood of certain police action in relevant circumstances

1. I find it improbable that if a police officer of 16 years' experience believed that a rifle had been pointed at her and thought it was necessary to call in police reinforcements: 1. no action was taken to approach the property from which the rifle was allegedly pointed for some five hours even though within two hours four other police officers including a sergeant were present; 2. there is no evidence that any action was taken to cordon off the area to protect the public or take any other security action; and 3. no attempt was made to contact the family which resided in the premises, across the road from the rear of the local police station.
2. Accordingly, I find that it is improbable that by 9 pm, five hours after the event, when several detectives and uniformed police officers attended the premises, any of those police officers had formed a considered opinion that a firearm had been pointed from the premises at the policewoman.

Public interest test

1. At [77] in RCS the Respondent submitted: The relevant matters pertinent to the Tribunal's task of determining the correct and preferable decision must involve consideration of matters that are relevant to determine whether it was in the public interest for the applicants to hold a Firearms Licence
2. A discussion of relevant case law with respect to public interest was set out by the ADT in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 including the following: 69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not 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." 70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual". 71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions….
3. Section 3 provides that the first of the underlying principles of the Act is that firearm possession "is conditional on the overriding need to ensure public safety".
4. Having regard to the above findings based on the material before the Tribunal I have confidence that there is virtually no likelihood that CSC would pose a risk to public safety if he had access to firearms.

Fit and proper test

1. The Act provides: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, 24 Revocation of licence (2) A licence may be revoked: (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
2. The issue of whether a person is "fit and proper" in various contexts has been dealt with on numerous occasions by courts and tribunals.
3. In Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Dixon C.J., McTiernan and Webb JJ said at [9] that the expression 'fit and proper person' generally involves honesty, knowledge and ability.
4. In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 the High Court observed that the expression "fit and proper person" takes its meaning from its context. In certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
5. The question of whether the Applicant is a fit and proper person involves a value judgement to be made in the context of the particular activity to be undertaken. In Wilkinson v Commissioner for Police [2002] NSWADT 59 the ADT said: 25. As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
6. Having regard to the material before the Tribunal and to my findings I am satisfied that the Applicant is a fit and proper person to hold a firearms licence, as he did for more than 20 years until its suspension by Detective Kelly on 1 September 2013.

Submissions by the Applicant during the proceedings

1. In various documents, including his submissions, and in his oral evidence and submissions, the Applicant alleged that certain named police officers had been dishonest and made many mistakes; assaulted and threatened him; improperly imposed a parking fine and penalty on him; acted maliciously, and otherwise did not act properly as police officers. The Applicant also referred to a 000 call made by his wife in respect of her safety and that of her children to which he alleges there was either no or no adequate response.
2. Some evidence has been put before the Tribunal in support of these allegations. I confirm my repeated statements to the Applicant during the hearing that these proceedings do not provide NCAT with appropriate jurisdiction to deal with his submissions.
3. CSC submitted that NCAT should provide "considerable compensation to our family for the enormous financial burden this case has cost us, in the NCAT arena over the last two years." I observe that NCAT is empowered by section 60 of the Civil and Administrative Tribunal Act 2013 to award costs of, or incidental to, proceedings in the Tribunal and proceedings giving rise to the application. However, the general rule in section 60 (1) is that each party is to pay their own costs. Costs of one party may only be required to be paid by another party if the Tribunal is satisfied that there are special circumstances warranting an award of costs. In determining whether there are such special circumstances the Tribunal may have regard to the matters referred to in section 60 (3) There is no evidence before me in respect of any relevant costs nor have there been any relevant submissions or evidence addressing the matters referred to in section 60 (3), nor of any special circumstances.

Decision

1. Having regard to my above findings, the correct and preferable decisions of the Tribunal are: 1. The Commissioner's decision under review to revoke the Applicant's category AB firearms licence is set aside. I note that the licence the Applicant held in August 2013 has expired through the passage of time. I direct that the Applicant must not apply for a firearms licence until he has completed a prescribed firearms safety training course. I direct that, if the Applicant applies for a firearms licence after the publication of this decision, the Commissioner shall have regard to this decision. 2. The Commissioner's decision under review to refuse the Applicant's application for a Permit to Acquire a Firearm is affirmed. 3. Each party is to pay their own costs of the proceedings. 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: 21 September 2016