Edlington v Commissioner of Police, NSW Police Force

Legal principles

1. The Tribunal has jurisdiction to review the Respondent's decision pursuant to section 75(1)(c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
2. The underlying principles of this Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms, and 3. to facilitate a national approach to the control of firearms.
3. The objects of this Act include, relevantly: 1. to establish an integrated licensing and registration scheme for all firearms, 2. to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms.
4. Section 24(2)(a) of the Act provides that the Commissioner may revoke a licence for any reason for which the 'licensee would be required to be refused a licence of the same kind'.
5. Section 11(5)(d) of the Act provides that the Commissioner must not issue a licence to a person who is subject to a GBB (whether in NSW or elsewhere), in relation to an offence prescribed by the Firearms Regulation 2017 ('Regulations'). For the purposes of s 11(5)(d) of the Act, the firearms offences with which the Applicant was charged are prescribed offences under the Regulations. Therefore, the Act allowed the Commissioner, in his discretion, to revoke the licence as the Applicant was subject to a GBB for a prescribed offence. The Applicant also could not be issued a new licence until the GBBs expired.
6. Section 24(2)(b)(ii) of the Act states that a licence may be revoked if the licensee 'contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention'.
7. Section 24(2)(d) of the Act provides that licence may be revoked for any other reason prescribed by the Regulations. Clause 20 of the Regulations provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold a licence.
8. Similarly, the Commissioner may refuse to issue a licence if the Commissioner 'considers that issue of the licence would be contrary to the public interest': s 11(7).
9. 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].
10. A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph [69] - [74]. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) ('the ADT') in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 ('Toleafoa') as follows: The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
11. The circumstances in Toleafoa related to the revocation of a security licence. In Ward v Commissioner of Police [2000] NSWADT 28 ('Ward'), the ADT confirmed that these comments apply equally to the Act. In Cusumano v Commissioner of Police [2001] NSWADT 50 ('Cusumano'), the ADT stated: There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
12. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
13. In Ward the Tribunal considered the fitness and propriety of Mr Ward to hold a firearms licence. The Tribunal stated at paragraphs [27] - [28]: 27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] 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.
14. In the context of the Act, where there is, or has been, the possibility of a threat to public safety arising out of an individual's use of firearms or possession of a firearms licence, then the public's right to safety must outweigh the individual's privilege to use and possess firearms: Aubrey v The Commissioner of Police [2005] NSWADT 266 [at 21] .
15. The Appeal Panel in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] found that the term 'public interest' included matters beyond the character of the Applicant and included public protection, public safety, and public confidence in the administration of the licensing system.

Consideration

1. The Applicant's evidence was that he had a long history of handling firearms safely from the age of 7, amounting to 71 years' experience, and had "never had a blemish or issue" in that time. He was an accredited coach from 2009 (a Firearms Safety Training Instructor) and loved to pass on his experiences with firearms, especially regarding safety. He had been the Chairman of the Northern Zone of the NSW Clay Target Association for 8 years, Chair of the State Executive and President of the Treloar Clay Target Shooting Club. The Applicant gave evidence that "a fair bit hinges" on his possession of a firearms licence, including his chosen sport and hobby of clay target shooting, his social interactions, and his role as a primary producer farmer. He would otherwise be attending weekly shooting practice at the Tamworth Club, and since the suspension of his licence and seizure of his firearms in December 2017 he had no access to firearms to deal with pests such as foxes, rabbits and hares on his property, or to humanely euthanise injured cattle or livestock, having to rely on the services of a vet.
2. The Applicant submitted that the impact caused by the licence revocation on his social wellbeing was relevant by reference to s 12(2) of the Queensland Penalties and Sentencing Act, which includes "economic and social wellbeing" as a factor relevant to considerations in recording criminal convictions. Whilst I accept that, factually, the revocation has had and will continue to have a significant impact on the Applicant's social life, I consider this relevant only to the Applicant's interest in retaining a firearms licence, which must be outweighed by public interest considerations. Similarly, the genuine reasons identified by the Applicant for obtaining and maintaining a firearms licence are justifiable, but must be subject to public interest considerations.

Assault charges

1. The assault charges arose out of an incident at the Applicant's property involving the Applicant and two individuals ('the licensees') who were the subject of Supreme Court proceedings regarding the licensing and possession of part of the Applicant's property. The Supreme Court proceedings were heard on 7 December 2017, with an ex tempore decision delivered that day by Justice Kunc: Edlington & Anor v Howe & Anor [2017] NSWSC 1715.
2. Although ultimately the assault charges were withdrawn, the Tribunal is entitled to consider conduct of the applicant which did not result in a criminal conviction, where that conduct is relevant to the applicant's fitness to hold a licence, and to be satisfied to the Briginshaw standard, rather than the criminal standard of 'beyond reasonable doubt': Joseph v NSW Commissioner of Police [2017] NSWCA 31. I accept the Respondent's submission that the Applicant's conduct in being charged with those assault offences is relevant to the Tribunal's assessment of the Applicant's suitability to hold a firearms licence on public interest grounds.
3. The Police Statement of Facts stated that on 8 December 2017, following the Supreme Court decision which granted the Applicant and his wife possession from 21 February 2018 of that part of their property which the Defendants had been previously licencing, the Applicant rode a quad bike towards the victim (one of the Defendants) twice and, in the second instance, attempted to strike the victim with his arm as he rode by. The victim of the assault "feared for his physical safety." The Applicant, when spoken to by the Police, stated that there was a cord wrapped around the vehicle's accelerator and he was unable to stop the quad bike.
4. The Respondent submitted that the video footage of the incident "demonstrates a deliberate act whereby the Applicant put at risk his safety and the safety of the victim". Having viewed the video footage and heard the Applicant's evidence in cross-examination, I am not satisfied to the Briginshaw standard, or on the balance of probabilities, that the evidence supports the Respondent's submission. Although the Applicant is seen driving a quad bike towards the individuals videoing him, I accept the Applicant's evidence that he was driving the quad bike in that direction for the purpose of mustering cattle on his property, and that he was "not trying to run them down". I also accept the Applicant's evidence that he was waving them away, not "attempting to strike the victim with his arm", as was submitted by the Respondent.

Firearms offences

1. I am concerned with the events that transpired following the alleged assault, when the Police attended the Applicant's property later that day to seize the Applicant's firearms. The Applicant told the police in attendance that most of his firearms were stored in his safe, but that two were in his garage. The Applicant's garage is approximately 20m from the safe storage location. Police attended the Applicant's garage and located, between a motor vehicle and a cupboard: 1. a Blasser F3, over/under, 12 gauge, break action shotgun; and 2. a Rottweil, over/under, 12 gauge, break action shotgun.
2. Both firearms were unassembled in their cases, which were not locked. All working parts of the firearms were in the cases and the firearms were accessible and in open view of any person that attended the garage, contrary to the requirements of the Act, specifically sections 40 and 41.
3. The Applicant explained in evidence and submissions that he had taken the guns out of safe storage the evening prior on 7 December 2017, and they were stored by him in a locked garage overnight. He had done this because his safe storage area was located near the licensees' area of his property, he was worried that if he accessed the safe storage area while the licensees were there they would "overpower him and take possession of the firearms", and he knew that the licensees would be away in Sydney for the Supreme Court proceedings at that time. The garage was unlocked the next morning on 8 December 2017, shortly prior to police arriving, because the Applicant was planning a visit to the local clay target shooting club.
4. He didn't consider these actions unsafe, stating that there was "no insecurity in use because they were in transit". He ultimately acknowledged that the firearms should not have been out of the gun safe overnight, that he had made a mistake in doing so.
5. The Applicant's safe storage area contained a gun safe and a storage container. Police were required to use bolt cutters to remove a padlock on the storage container. In evidence the Applicant stated that he had told the Police to do so because, contrary to the agreed facts that he didn't have or provide a key to the police, the key didn't work, and he was locked in the police wagon at the time so could not open it himself. Inside the gun safe was a further lockable safe, in which the police located a silencer, being a prohibited weapon under the Weapons Prohibition Act 1998. When spoken to by the Police, the Applicant declined to tell them anything about his possession of the silencer.
6. In evidence the Applicant claimed he had found the silencer during his recent property move, did not know what it was, had intended to surrender it at the next amnesty, but had forgotten about it. He also stated that it was in poor condition and did not fit any of the firearms registered to him. The Applicant submitted that he "did the right thing in locking it up, but did the wrong thing in not reporting it".
7. In cross-examination the Applicant agreed that he had moved to the property in January 2016, but had not registered the change of address for the purpose of his firearms licence and registration until June 2017. He agreed that he was aware of the obligation to inform the police of a change of address as a condition of his licence and registration, but "didn't think it was necessary to inform police" and stated he had "never had to deal with it before". The Applicant's firearms storage at the Duri property was inspected in the months prior to the incident on 8 December 2017.
8. The Applicant's violation of specific firearms provisions relating to the safe storage of firearms (and his unauthorised possession of a prohibited article) are substantial factors in the consideration of this matter. The Applicant failed to secure the firearms at his property safely and in accordance with the Act. The Police who attended his property, found the two firearms completely unsecured, in unlocked cases and with all required parts present, meaning that the firearms were available to any person that attended the garage, could easily be stolen and could have been put together and used by any other party.
9. I agree with the Respondent's submission that the Applicant has demonstrated an awareness that he was not permitted to possess the silencer. There was a well-publicised amnesty between 1 July 2017 and 30 September 2017 during which the Applicant failed to surrender the silencer. In the context of the Applicant's evidence about the condition of the silencer and that it "didn't fit anything", his previous firearms licences and his long history of association with firearms and shooting clubs, including firearms safety training, I consider it implausible that he did not know what the silencer was or that it was a prohibited weapon.

Public interest and special circumstances

1. The Applicant submitted that he had "learnt his lesson", was remorseful, and that the chances of him repeating the offences for which he was charged were very low given his long and detailed history of firearms usage. He provided a report from psychologist Michael Kruger-Davis in support of his application, which provided a limited psychological assessment, character reference and risk assessment "to provide further evidence that it is unlikely for Mr Edlington to reoffend". In the context of Mr Kruger-Davis' personal and sporting association with the Applicant, however, I consider the value of the report as an independent expert opinion to be of diminished weight.
2. The Applicant relied on the decision in Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 which expresses at [19] the principles relevant to the determination of a review of a revocation decision based on the failure to store firearms safely: while there is no onus of proof on either party, 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 that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]); the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). 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].
3. The Applicant submitted that application of those principles should result in a determination that "while the breach is not trivial or excusable, is certainly not forming of an appreciable risk to the public" on the basis that: 1. the Applicant's reasoning for failing to store the firearm properly, being the presence of unwanted licensees on his property, no longer existed; 2. the firearms were only left out of storage overnight, but still within a locked garage, so the potential danger was low, given the remoteness of the property; 3. there was a long history with firearms and compliance and the Applicant understands the importance of safe storage; 4. the Applicant has a valid reason for having a licence, including primary production.
4. Whilst the "potential danger" to which the public was exposed by the Applicant may have been low in the Applicant's opinion, I disagree that there was no "appreciable risk to the public". The firearms were not secured appropriately at all times, which meant that there was a risk to public safety. Whilst the Applicant may himself not pose a risk to public safety, his attitude to compliance with the strict regulations imposed by the Act and Regulations was inexcusably casual in the context of his years of experience and the conflict between him and the licensees - or, as he termed them, "squatters" -on his property.
5. The Respondent submitted that although the Applicant had acknowledged his "mistake", there was no real demonstration of remorse, and his evidence about the firearms offences and their circumstances was inconsistent and vague in the context of his lengthy firearms history. I accept the Respondent's submissions. I agree that the applicant in his evidence did not demonstrate a real appreciation of the importance of his obligations as a firearms licence holder, and demonstrated little real remorse for his actions, instead seeking to minimise and justify his conduct. While he told the Tribunal that he was sorry for the breaches, that sentiment was not apparent in the manner in which he gave evidence where he primarily tried to demonstrate to the Tribunal that he had done nothing wrong and expressed regret only for the impact his conduct had on his ability to maintain his firearms licence.
6. The Applicant pleaded guilty to one count of 'Not keep firearm safely - not prohibited firearm/pistol'; and one count of 'possess or use a prohibited weapon without permit - T2'. While the Applicant did not have a conviction recorded for the offences, I disagree with the Applicant's characterisation that "this is an indication of the court's view on the seriousness of the offending". Penalty considerations by the Court in criminal proceedings involve more than just the objective seriousness of the offences. The court imposed GBBs of 12 months' duration for each of the offences, which have not yet expired. The imposition of GBBs in the context of s 11(5) of the Act is a significant circumstance weighing on the Tribunal's consideration of whether it is in the public interest for the Applicant to have his firearms licence reinstated.
7. Section 24(2)(a) of the Act provides a discretion to the Commissioner and Tribunal to revoke the Applicant's licence on the basis that, pursuant to s11(5)(d) of the Act, he could not obtain a new licence while subject to the GBBs. The Respondent submitted that "special or exceptional circumstances" would be needed to justify a reinstatement of the Applicant's revoked licence in the circumstances of these proceedings where the Applicant was still subject to the GBBs imposed by the Local Court in May 2018, referring to the comments of Higgins JM in Maloney v Commissioner of Police, NSW Police, 22 November 2004 (unreported) ('Maloney') that: Although the Commissioner has a discretion in this regard where the conviction occurred after the licence has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.
8. The Applicant submitted that if "special circumstances" were required of the kind referred to in Maloney, the applicant's age and lack of antecedents would constitute special circumstances, in the context of the "limited time with which to undertake his sport shooting activities", where "any time away from the sport is significant at his age".
9. Although an unreported decision, the reasoning in Maloney has been followed by this Tribunal many times, including in Hamshere v Commissioner of Police NSW Police Force [2012] NSWADT 244, and I agree with that reasoning. Whilst there was no conviction recorded in the Applicant's criminal proceedings, he was made subject to the GBBs which, similar to the imposition of a conviction, would require a mandatory refusal for a new licence application.
10. I appreciate the Applicant's age and personal connection to his sport and hobby of clay target shooting mean that the revocation of his licence has had and will continue to have a significant impact on him and his social life, and inconvenience him in the management of his property. However, a decision maker should not shy from exercising discretion adversely to an individual merely on the grounds that they may suffer hardship and/or inconvenience: Hill v The Commissioner of Police [2002] NSW ADT 218 at [22]. I agree with the Respondent's submissions that the Applicant's circumstances do not warrant "special circumstances" so as to justify the exercise of the Tribunal's discretion.
11. Firearm possession is a privilege that is conditional on the overriding need to ensure public safety. As expressed in Cusumano, the community's interests take precedence over the private interests of an individual. 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, New South Wales Police [2005] NSWADT 75 at [25]. Despite the Applicant's long history and experience with firearms, including firearms safety instruction, he breached the mandatory requirements of the legislation and any breach of the Act evidences 'an attitude that is still significant': Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211. On the basis of the Applicant's evidence and his attitude to strict compliance with the Act and Regulations, I am not satisfied that there is "virtually no risk" to public safety if the Applicant were to retain his firearms licence. I am also satisfied that it is not in the public interest for the Applicant to have his firearms licence reinstated whilst subject to GBBs, imposed for firearms offences, less than 12 months ago.

Imposition of conditions

1. I have considered the imposition of conditions on the applicant's firearms licence, and whether that would alleviate any of the concerns regarding public safety and the public interest considered in these proceedings. The Tribunal has previously held that the Commissioner may impose conditions on a licence already in existence, the discretion to impose conditions is very broad, and the discretion should be exercised in a way which promotes the principles and objects of the Act: Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 and Cusumano. However, the Tribunal must first be satisfied that a licence should be issued to the Applicant, before it considers whether the imposition of conditions is appropriate. I agree with the Respondent's submissions that the public interest concerns in these proceedings cannot be resolved by the imposition of conditions, and that, consistent with the principles and objects of the Act, if there are public interest concerns, the licence should not be issued to the Applicant at all.

Conclusion

1. The correct and preferable decision is therefore to affirm the Respondent's reviewable decision.

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

Amendments 15 April 2019 - Removal of personal information at [24] and [34]. 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: 15 April 2019