Elliott v Commissioner of Police, NSW Police Force

licant) Makinson d'Apice (Respondent) File Number(s): 2022/00186703 Publication restriction: Nil

reasons for decision

1. 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.
2. 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.
3. 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.
4. 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 His licence was revoked on 4 June 2021, and on 31 May 2022 that revocation was affirmed following an internal review.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.

Applicable legislation

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

The evidence

1. 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).
2. 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.
3. 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".
4. 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.
5. 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.

Respondent's submissions

1. 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].
2. 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.
3. 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".
4. 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.

Consideration

1. 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.
2. 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.
3. 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.
4. 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.

Contravention of a provision of the Act or regulations

1. 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…."
2. 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.
3. 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…."
4. 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).
5. 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).

Negligence causing a firearm to be stolen: s 24(2)(c1)

1. 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).
2. 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.
3. 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).
4. 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).

The public interest

1. 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.
2. 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.
3. 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.
4. 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].
5. 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].

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.

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 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