Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Commissioner of Police, New South Wales Police Service v Mercer [2005] NSWADTAP 55
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Commissioner of Police, New South Wales Police Service v Mercer [2005] NSWADTAP 55Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50Director of Public Prosecutions v Smith (1991) 1 VR 53Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Hunter v Chief Constable, West Midlands Police [1982] AC 529Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368Lahood v Commissioner of Police, New South Wales Police [2021] NSWCATAD 18Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
(1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
R v Drum, Wagga Wagga Local Court 15 August 2022, unreported
Saffron v FCT (1991) 102 ALR 19
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Sudath v Health Care Complaints Commission [2012] NSWCA 17, (2012) 84 NSWLR 474
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Whalan v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 87.
Category: Principal judgment
Parties: Terry W Elliott (Applicant)
The applicant Mr Terry William Elliott applied to this tribunal on 23 June 2022 for review of a decision by the respondent Commissioner on 31 May 2022 to revoke the applicant's category ABH firearms licence and ammunition collection permit.
The applicant had been issued with a category ABH licence on 19 December 2017, to expire on 19 December 2022. He was also issued with an ammunition collection permit on 21 February 2018, to expire on 21 February 2023.
On 19 October 2020, he was the victim of a breaking and entering, in which three of his pistols were stolen. He had placed them in his gun safe (which police said was a category AB safe) the last time he had used and cleaned them. The offenders had forced the top corner of the safe, thereby gaining sufficient access to insert a hand into the safe. The safe had an inner compartment, which the applicant had left unlocked with the key in its lock, thereby enabling the offenders to access that part of the safe where the pistols were kept. The offenders failed to gain access to any firearms other than those located in the in the compartment.
On 15 February 2021, the applicant pleaded guilty to the offence of "category C, D or H licensee not comply with storage needs" and was discharged without conviction under a conditional release order (CRO) for a period of 12 months concluding on 14 February 2022. The CRO expired on that date without incident. His licence was revoked on 4 June 2021, and on 31 May 2022 that revocation was affirmed following an internal review. The applicant applied for review in this tribunal on 23 June 2022 and the application came on for hearing on 4 November 2022 by AVL.
[3]
Applicable legislation
Section 24(2)(ii) of the Firearms Act provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.
Section 24(2)(c1) of the Act stipulates that a licence may be revoked if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen.
Section 24(2)(d) states that a licence may be revoked "for any other reason prescribed by the regulations" and cl 20 of the regulation 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 the licence.
Section 39 of the Act lays down the general requirements for the safekeeping of firearms:
39 General requirement
(1) A person who possesses a firearm must take all reasonable precautions to ensure -
(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.
Maximum penalty - 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.
Note -
Reference to a pistol includes a prohibited pistol.
(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
The storage requirements for category H firearms (pistols) are set out in s 41:
41 Category C, D and H licence requirements
(1) The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies -
(a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated,
(b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,
(c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm,
(d) such other requirements relating to security and safe storage as may be prescribed by the regulations.
Maximum penalty - 50 penalty units or imprisonment for 2 years, or both.
(2) A licensee does not have to comply with the requirements of this section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee's possession that are of a standard not less than the requirements set out in this section.
[4]
The evidence
The facts of the case were not in dispute and the respondent adduced no oral evidence, but instead relied on the documentary material, including the s 58 documents (exhibit R1).
The applicant also adduced no oral evidence but instead tendered a signed statement dated 29 August 2022 (exhibit A2) which stated that he had held licences and permits since 1973 without issue before the break-in. He pleaded guilty on legal advice, but it now appeared that he might not have been guilty, because there was no requirement in the legislation relating to the thickness of the steel in firearms safes.
The recent Wagga Wagga Local Court decision in the case of R v Drum (unreported ex tempore, 15 August 2022, exhibit A1) confirmed that the police fact sheet, where steel thickness was referred to, was only a recommendation, not an approval by the Commissioner of Police, and at the bottom of that document were the words "For general guidance purposes only".
The safe that was broken into was a category H approved safe, which also had an internal storage at the top which was lockable. The applicant chose to store the pistols in that top section of the safe as it was at chest level, rather than leaving them on the floor of the safe among the long arms. So, while he left the key to the top door in the lock, the main door was still locked, which denied access to this internal space regardless.
It was due to the thieves breaking into the main door with a jackhammer that they had brought with them, that they were able to access the internal area within the safe and subsequently steal the pistols. He had lodged an annulment application with the court. There was no cross-examination.
[5]
Respondent's submissions
The applicant relied on written submissions filed on 27 September 2022 (exhibit R2 which, after setting out the background and the applicable law, contended that it would be contrary to the public interest for the applicant to hold a licence as his negligence had resulted in firearms being stolen. The police event report stated that the pistols were stolen from an inner lockable compartment of a category AB safe which was bolted to the concrete floor and to a further safe at the rear. The offenders had forced the top corner of the safe with a jackhammer or similar tool permitting access only enough to manoeuvre a hand into the safe. The event report states that the applicant left the key to the inner compartment in the lock, enabling the offenders to access that part of the safe. The report states that without the key, access to any of the firearms probably would not have been successful. The three pistols stolen had not been recovered. Unaccounted for firearms were a significant risk to public safety: Whalan v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 87, [54].
By breaching a provision of the legislation, the applicant had demonstrated a lack of vigilance for the legislative scheme directed towards ensuring public safety. "The price for safety from firearms is eternal vigilance and compliance with the statutory regime", the respondent wrote.
The applicant had contravened s 39 of the Act and cl 16, cl 106 and part 10 of the Regulations. The tribunal could consider circumstances that would amount to a breach of the legislation regardless of whether or not the applicant had been convicted of an offence relating to such breach. It was the conduct rather than the conviction that was of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. The appeal panel had observed in Commissioner of Police, New South Wales Police Service v Mercer [2005] NSWADTAP 55, [20] that "The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point… the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion".
The Court of Appeal in Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [63] noted that "There is no reason in principle why an administrative decision-maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions". The applicant's negligent conduct in failing to lock the inner compartment constituted a breach of s 39(1). That negligent conduct also constituted a breach of s 24(2)(c1), which was introduced into the Act in 2003 pursuant to the National Firearms Agreement, which provided that a general reason for licence cancellation was that a firearm was lost or stolen because of the negligence of the licensee.
[6]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that 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 the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[7]
Contravention of a provision of the Act or regulations
The respondent relied on the facts as stated in event report E78015978, which related in part that on 19 October 2020 the applicant had stored three of his pistols in the top section of his rifle safe located within the main section of his garage. "This compartment was unlocked and the keys were in the lock. The main door to the safe was locked and secured. This compartment is not a secure safe storage location for pistols as the wall thickness and locking mechanism does not comply with the requirements for category H…."
At the time of the theft the applicant was in Melbourne visiting his two sons. At about 7:00 a.m. on the relevant day, Mrs Elliott had left for work as usual, returning home, having collected the applicant at the Wodonga bus station, at about 4:20 p.m.
On his return, "Terry [the applicant] opened the garage door and entered to see his secure gun room door open with the lock damaged. Terry also saw his rifle safe door had been damaged with the top right corner open and exposed. Terry looked through the door and saw that his three pistols were missing from the top compartment…. The safe [was] bolted to the concrete floor and also a further safe at the rear. The offender/s have forced the top corner of the safe with a jackhammer or similar permitting access only enough to get a hand into the safe. ELLIOTT has inadvertently left the key in the inner compartment in the lock enabling the offender/s to access this part of the safe by opening the lockable compartment with the key. Without this key the access to any of the firearms probably would not have been successful…."
The police fact sheet for the charge H771800724 hearing at Albury Local Court on 15 February 2021 states that the charge is "Category C, D or H licensee not comply with storage needs, Firearms Act 1996 section 41(1)". That provision states that "The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies:" and goes on to list four requirements (see para 9 above).
The fact sheet then states in part that "Gun safe two is an approved gun safe which was bolted to the concrete floor of the garage and also bolted to another large cabinet. This gun safe is approved for Category AB firearms (long arms) however due to the thickness of the doors being less than 6mm is not approved for handguns/pistols (C at [sic] H). Inside gun safe 2 is a further lockable compartment which requires a key to access this particular area of the safe. In effect it is a safe within a safe. The door of the inner compartment is also 2-3 mm thick. The accused placed three handguns into the inner compartment of Gun Safe 2 after the last time he used or cleaned these firearms" (exhibit R1, p 38).
[8]
Negligence causing a firearm to be stolen: s 24(2)(c1)
Mr Regener explained that this provision was introduced into the Act by the Firearms Amendment (Prohibited Pistols) Bill 2003 as a consequence of the National Firearms Agreement. That agreement provided that jurisdictions party to the agreement [including New South Wales] would include as a "minimum standard" a general reason for licence cancellation "where it can be shown that the loss or theft of a firearm was due to negligence or fraud on the part of the licensee" (para 38). Accordingly, it was submitted, to set aside the decision under review would be to cut across the intent of the Legislature to give effect to the agreement that negligence resulting in loss or theft of a firearm should be one among a range of minimum standards. The tribunal should find that this contravention amounted to a requirement to revoke the applicant's licence pursuant to s 24(2)(c1).
It is not altogether clear from the agreement whether licence revocation for negligent loss of a firearm was intended to be mandatory or not. At all events, s 24(2)(c1) as enacted is clearly a discretionary power.
The respondent submitted that "It is unarguable that leaving the keys in the lock to [the] safe did not constitute negligence" (exhibit R2, para 45). That would be true if the outer door, as well as the inner door, had been left unlocked, but it was not, thereby barring access to the inner door. The Commonwealth-wide agreement does not require that there be a lockable internal compartment additional to the locked outer door. It requires only "a locked, steel safe with a thickness to ensure it is not easily penetrable, bolted to the structure of a building" (para 44(c)(ii)). (Nor, incidentally, does it prescribe any particular thickness of steel for the walls and door of the safe).
In considering the issue of negligence, it is necessary to identify the applicable standard of care. The Firearms Act lays down stringent requirements for the storage of firearms, not least for category H, and no other standard of care is prescribed. Although additional precautions such as a locked inner compartment might well be desirable and in the spirit of the legislation, they are not prescribed and it would be inappropriate for this tribunal to place a gloss on the legislation by adding such a stipulation (AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [7] per Hennessy DP).
[9]
The public interest
The "public interest" factor allows consideration of a range of issues to be taken into account, including the character of the applicant, concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, a range of New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[10]
Orders
1. Decision under review set aside.
2. A category ABH firearms licence is to be reissued to the applicant.
3. An Ammunition Collector's Permit is to be reissued to the applicant.
[11]
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
[12]
Amendments
01 February 2023 - Order 3 included
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: 01 February 2023
The issue in this application is thus whether the correct and preferable decision is to affirm or to set aside the decision under review on the ground that it would be contrary to the public interest for the applicant to retain a licence, in particular by reason of the contravention of the safe storage provisions.
In oral submissions at the hearing the respondent reiterated those points, adding that Hunter v Chief Constable, West Midlands Police [1982] AC 529 had declared that it was an abuse of process to use proceedings to make a collateral attack on a decision in a criminal case, though acknowledging that the position might be different in the case of administrative proceedings.
In Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474, [101] - [102], Basten J had explained that evidence could be led to explain the facts but not to impugn the factual findings that were the basis of the finding of guilt. In this case the applicant had left the keys in the inner lock, thereby giving thieves the opportunity to steal the contents. It was well understood that the concept of negligence involves failure to take due care, and in this case the result was the loss of the firearms.
The applicant had displayed a lack of insight into the contravention. He had left the keys in the safe, but did not accept the nexus between that omission and the theft, which he said was due to the thieves having a jackhammer. But his failure to recognize his own contributing conduct was a cause for concern. As he had displayed no contrition, the tribunal could not be sure that he would not do the same thing in the future. Once criminal conduct had been established, it would be an abuse of process to use the tribunal proceedings to make a collateral challenge to the finding of guilt.
The respondent's case for licence revocation rests on three related grounds:
1. Contravention of a provision of the Act or regulations, whether conviction or not: s 24(2)(b)(ii). In this case a contravention of ss 39 and 41(1) was relied on.
2. Negligence causing a firearm to be lost or stolen: s 24(2)(c1).
3. Not in the public interest for the applicant to hold a licence: s 24(2)(d) and cl 20.
Each of these revocation powers is discretionary. The grounds may now be considered in turn.
At the hearing Mr Kable submitted that the requirement that a category H safe should be made of steel not less than 6mm thick was not laid down in the Act or regulations but was simply a recommendation by the respondent in a fact sheet on the Firearms Registry website.
The fact sheet states in part as follows:
Minimum standard for C D and H
The safe should be constructed of structural grade 250 mild steel conforming with AS3679 and be not less than 6mm in thickness for pistols and 3mm for longarms… and
It should be fitted with a door not less than 6mm thick….
In R v Drum (Wagga Wagga Local Court, 15 August 2022, unreported), Hosking LCM found that the requirement relating to wall or door thickness for category C, D or H firearms was not laid down in the Act or the regulations. It was only in the Firearms Registry fact sheet and was (and still is) prefaced by the words "The information provided in the FACT sheet is for general guidance only…." Her Honour found that the prosecution had failed to make out a prima facie case of breach of the storage requirements and dismissed the charge with costs.
The respondent did not dispute the wall and door thickness point, but submitted that the applicant had nevertheless contravened s 39 and s 41(1) by failing to lock the door of the inner compartment where he had placed his three pistols, arguing that if the compartment had been locked, the thieves might have been unable to open it.
While that is possible, if speculative, it is equally possible that, using the jackhammer with which they had opened the locked outer door, they could have gained access to the inner compartment if it had been locked. In both cases the steel used in the walls and doors was 2-3 mm thick and the jackhammer had successfully penetrated the outer door. As it was, the handguns were stored in a locked safe that complied with the Act and regulations and it would appear that the applicant was not in breach of the legislative requirements, as the Firearms Registry fact sheet had no statutory force.
The respondent pointed out that the tribunal can consider the circumstances that would amount to a breach of the firearms legislation, regardless of whether or not the applicant has been convicted of an offence relating to any such breach. It was the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]; see also Commissioner of Police, New South Wales Police Service v Mercer [2005] NSWADTAP 55, [20].
Further, it was submitted, it would be an abuse of process to use proceedings to make a collateral attack on a decision in a criminal case (Hunter v Chief Constable, West Midlands Police [1982] AC 529), though the position might be different in the case of administrative review. R. v Drum was irrelevant because it challenged the basis of the finding of guilt. Procedural fairness required that "the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges the facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial": Sudath, [101].
The general rule applied in such cases is that where the exercise of jurisdiction by a tribunal depends on conviction of, or finding of guilt of, an offence (as under ss 24(2) and 11(5)(b)), the finding cannot be challenged before the tribunal, other than in exceptional circumstances: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, [42]; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; (1982) 42 ALR 209.
On the other hand, "where the exercise of power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based": Saffron v FCT (No.2) (1991) 102 ALR 19, 22; see also Lahood v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 18, [73] - [75]. As in this case the tribunal's jurisdiction does not depend on a finding of guilt, the applicant's evidence in relation to the safe storage requirements is admissible and may be given weight.
The totality of the evidence on this point leads to the conclusion that the applicant's conduct in storing the pistols in an unlocked inner compartment, but in a complying gun safe that was locked, was not a breach of the safe storage requirements for category H firearms, and I so find.
For the reasons given above, the evidence leads to the conclusion that the theft of the firearms was not due to negligence on the part of the applicant, who had satisfied the applicable standard of care. Rather it was due to the activities of motivated, organized and well-equipped thieves whose modus operandi seems to suggest a measure of prior information about the firearms held at the premises, the storage arrangements for them and the usual movements of the applicant and Mrs Elliott. The thieves have also managed to escape apprehension to date. I therefore find that the theft of the firearms was not due to negligence on the applicant's part.
On the issue of public interest, the respondent relied on the theft of the applicant's three pistols on 19 October 2020, pointing out that the event report had expressed the opinion that without that key, access to any of the firearms probably would not have been successful. The fact that the pistols had not been recovered also constituted a risk to public safety.
The breach of the provision of the firearms legislation of which the applicant had been found guilty was relevant to the public interest as it demonstrated a lack of vigilance for the legislative scheme directed towards ensuring public safety. It would be contrary to the public interest for the applicant to have a firearms licence as it would be contrary to the "good order of society" (Director of Public Prosecutions v Smith (1991) 1 VR 63). "The price for safety from firearms," the respondent submitted, "is eternal vigilance and compliance with the statutory regime. A demonstrated failure to maintain that vigilance ought to result in revocation of the privilege to store firearms" (exhibit R2, para 30).
The applicant is a man aged 63 who has no criminal convictions. He has no history of violence, of threatened violence or of substance abuse. There is no evidence of any mental health disorders or psychiatric treatment. As he appears to have no traffic infringement record, Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 has no application. The only blemish on his record is the CRO, arising out of the theft of his pistols on 19 October 2020, which expired on 14 February 2022 without incident.
He had held a firearms licence for 40 years with no charges or adverse notice until then, having passed at least two safe storage inspections. The fact sheet stated that the safe containing the pistols was bolted to the floor and approved for category AB long arms, although in light inter alia of R v Drum it would appear to have qualified for category H also. In any event, he pleaded guilty to the safe storage charge at the first opportunity.
The applicant has been without his licence for over two years, since it was suspended on 19 October 2020 (exhibit R1, p 39) and subsequently revoked. That experience, coupled with the CRO and these proceedings, will have constituted a powerful object lesson on the imperative need to observe safe storage principles in spirit as well as in the letter. I do not think there is any real or appreciable risk, as understood in Webb, that the applicant's possession of firearms would endanger public safety and consequently I conclude that it would not be contrary to the public interest for a licence to be issued to him. The decision under review should therefore be set aside.