The Applicant's evidence before the Magistrate was that the firearms had been in the wardrobe for a maximum of 90 minutes before the Police attended his premises. The ammunition and the bolts were located on a different side of the wardrobe to the firearms.
By way of explanation as to why the ammunition had not been returned to the shed, the Applicant said that he proposed to return the firearms, the bolts and the ammunition to the shed after he had cleaned the firearms. He said it would have taken him 10 minutes to secure the firearms and the ammunition in the shed at the end of the workday.
In his 2022 statement the Applicant wrote that after finishing the vegetation clearing he decided that he would oil the firearms in the evening. After finishing trimming and mowing around the shed area he set an electric insect zapper outside the door of the shed and extensively sprayed inside the shed. He took the firearms back to the house, removing the bolts from each firearm. No mention was made of why the ammunition was also taken into the house.
He said that his plan was to take the firearms back to the shed and then clean them with an air compressor, oil and clean them and then put them back into the safe.
In his 2023 statement the Applicant accepted that all firearms must be stored safely when not being used, and that he should have had them remain in the locked safe until they were to be cleaned, even after any use. He wrote that he fully understood that firearms should remain in a locked safe when they are not being used, and that firearms that are not stored properly can expose others to significant risk of injury and or death.
He wrote that when the Police initially interviewed him on 14 April 2020, he felt uncomfortable and did not provide an account of his firearm usage. The Applicant said that when Police attended to serve the Notice about a week later he recalled saying words to the effect:
I have spoken to my Solicitor Steve Collins, about what has happened, and he has advised me that I should have told you the full story, being that I had the firearms out of the safe storage that afternoon for use and then cleaning.
Before me the Applicant said that there had been mosquito problems at his 34 acre property and he wanted to clear thick vegetation. He took 3 of his 7 firearms out with him, he said, because there was a chance of encountering snakes. As to why he needed three firearms for this purpose he said that two were completely different. For example, one fires a single bullet, whereas one fires a series of pellets and he would use one or other depending on the circumstances. As to the third firearm, which he said was quite old, he said there was a problem with its bolt and he had sprayed it with lubricant and left it alongside where he was working on the vegetation.
He said that when he finished working it was just on dark. He took the mowers and equipment he had been using back to the shed and sprayed inside the shed for mosquitoes; he took the 3 firearms and the ammunition back to the house, intending to clean the firearms later that evening.
The Applicant said he was concerned when he saw a vehicle coming up the drive, especially as it was late at night, it was during lockdown, and he was expecting no visitors. In his 2023 statement he wrote that he was anxious and in a stressed state when Police attended his property that evening without prior contact.
The Applicant denied that he usually stored the firearms in the wardrobe. He was referred to his being recorded as saying that he needed reasonably fast access to the firearms in case of pests such as snakes. The Applicant could not recall that he made a statement when in the shed about needing reasonably fast access to firearms.
He said he could not remember storing the firearms in the wardrobe previously; neither could he recall if this was the first occasion he had placed the firearms or ammunition in the wardrobe. In relation to the Crimestoppers allegation at 9.30 am that day that there were unsecured firearms in the wardrobe the Applicant denied that one or more of the firearms had been placed in the wardrobe prior to his return from the work that day.
As to the ammunition located (including that which did not match the firearms in the wardrobe) the Applicant said that all his similar sized ammunition was located in a wallet and he had taken the wallet to the clearing work that day. The wallet was usually stored in the safe in the shed.
The Applicant said it was his intention to return the firearms to the safe in the shed after he had cleaned them. He said it was his practice to clean firearms on the table on the back verandah of the house. The cleaning implements, he said, were on the verandah of the shed.
There were a number of aspects of the evidence which are concerning. Firstly, the Crimestoppers report was made at about 9.30 am on the day Police attended the Applicant's premises later that evening. As it transpired, the report proved to be accurate insofar as it alleged that the Applicant had an unsecured firearm in his walk-in wardrobe and that the Applicant's son was at the premises. It is difficult to explain the prescience of the report such that, according to the Applicant's evidence, about 12 hours after the report was made, he had only placed the firearms in the wardrobe about 90 minutes beforehand. The Applicant had denied that he usually stored the firearms in the wardrobe and could not recall storing the firearms there previously, although, confusingly, he also said he could not recall if this was the first occasion he had placed the firearms or ammunition in the wardrobe. It was submitted on the Applicant's behalf that placing the firearms in the wardrobe was a proper way to temporarily store them when his intention was to later clean them; this did not amount, it was submitted, to storing them inappropriately.
Importantly, the Applicant's admission recorded on the BWV that the firearms were in the wardrobe so as to "be handy" and provide "reasonably fast access" in the event of snakes. This contention was repeated after the Applicant was cautioned.
In contrast to this explanation provided at the time the firearms were located, is the Applicant's explanation of his intention to clean the firearms later that evening. As discussed, the Applicant did not make that claim when Police attended. The Applicant said he was anxious and in a stressed state by the attendance of Police at his property. The Applicant said he was concerned when he saw a vehicle coming up the drive, especially as it was late at night, it was during lockdown, and he was expecting no visitors. The Police evidence however was that they were in a clearly marked Police vehicle, that they identified themselves and told him they were to conduct a welfare check and an inspection of his firearms storage. The BWV depicts the Applicant being co-operative with Police, and this was the subject of very positive comment in the criminal proceedings. I accept that, at first, the Applicant may have had concerns about the unexpected visitors, but the Police vehicle was clearly marked and his demeanour captured on BWV was one of apparent calmness and co-operation, which is at odds with the suggestion that he was flustered to the extent that he had overlooked explaining about using the firearms that day and proposing to clean them.
In any event, no explanation could be offered for his admission, clearly seen on the BWV, that the firearms were kept in the wardrobe for ready access.
On the Police evidence the Applicant also did not make the claim that he was going to clean the firearms when they attended the following week to serve the Notice, saying only that he was just using the firearms that day while clearing land and had not thought to say that the night they attended. The Applicant, however claimed that he also told them that he had taken the firearms out of the safe storage that afternoon for use and then cleaning. Even if the Applicant did tell the Police that he was going to clean the firearms, that explanation is at odds with the Applicant's clear admission about having the firearms readily accessible.
Before the Magistrate the Applicant's evidence was that he was going to clean the firearms because they were fairly heavily covered in dust and other grit. The Police statements were silent as to whether the firearms showed signs of dirt. The BWV did not show sufficient detail for me to form a clear view as to the state of the firearms, although they did not appear to me to be dirty or "fairly heavily covered in dust", as the Applicant suggested. I accept that it is likely good practice to regularly clean firearms whether or not they have been used, irrespective of whether they are "dirty". Even if I were to accept the Applicant's account that they were as dirty as the Applicant claimed, placement of them in his wardrobe as can be seen on the BWV in close proximity to his clothes seems an inappropriate location for them, even if only for the relatively short period the Applicant claimed. Rather than take the firearms through the house to the Applicant's bedroom, they could have readily been left temporarily on the table on the verandah where the Applicant said was going to clean them. Given the Applicant's evidence of the unlikelihood of visitors, that location was both practical and only marginally less secure, in my view, than the wardrobe. Furthermore, there was no evidence that bolts are subject to a cleaning regime and there may have been no need to take the bolts into the wardrobe, although I accept one of the bolts required work. There was clearly no need to take the ammunition into the house at all, as it would not be "cleaned".
In his 2022 statement the Applicant said that he proposed to take the firearms back to the shed and then clean them with an air compressor, oil and clean them and then put them back into the safe. Before me, he said he would clean his firearms on the verandah of the house, whereas the cleaning implements were at the shed.
In his 2022 statement the Applicant had said that after work he returned to the shed to spray inside. There appears to be to have been no impediment to his returning the firearms to the safe at that time, as he was in the shed anyway.
For these reasons, I do not accept that it was an oversight by the Applicant in failing to mention that the firearms were temporarily placed in the wardrobe as he was going to clean them as the explanation for the firearms, bolts and ammunition being unsecured in his wardrobe. I find the Applicant's explanation to be implausible and that, on balance, especially having regard to his admissions, he is likely to have routinely located firearms in his wardrobe, and thereby failed to secure them in accordance with the legislation.
[2]
On what basis was the Applicant's licence application refused?
The Applicant's firearms licence application was refused on the basis that it was not in the public interest that he hold a firearms licence: s11(7) of the Act. On internal review the decision was affirmed on the same basis.
Before me the Respondent also submitted that the Applicant was not a fit and proper person to hold a firearms licence. The Respondent also contended that the Tribunal should not be satisfied that the storage and safety requirements of the Act are capable of being met by the Applicant.
[3]
Is the Applicant a fit and proper person to hold a firearms licence?
Section 11(3) of the Act requires that the Tribunal be 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.
The question whether a person is "fit and proper" is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace. The Respondent submitted, in particular, that I should be satisfied that the account the Applicant gave to Police on 14 April 2020 was true, namely that he kept 3 firearms in his wardrobe for ready access in the event of snakes, and that his subsequent versions which were to the effect that he had placed the firearms in the wardrobe temporarily prior to cleaning them were false, and that it was that obfuscation in providing false information about the events that should give rise to a finding that he is not a fit and proper person to hold a firearms licence, in addition to the actual failure to secure them in the safe.
The Applicant relied on the character statements of Scott Fenton and Paul Harmon.
Mr Fenton has known the Applicant for 35 years, especially through the Inverell and Glen Innes Pistol Clubs where they would shoot regularly for a period of about 6 years. Despite having reviewed the refusal statement of reasons, Mr Fenton maintained that the Applicant is "a fit and proper person to be able to have a firearms licence because of his safety awareness and regimental nature".
Mr Harmon has known the Applicant for virtually the whole of the Applicant's life, and the Applicant has provided computer services to Mr Harmon's family and business. After reviewing the reasons for refusal, he considered the Applicant to be a "fit and proper person to possess a firearms licence". He also considered the Applicant to be able to exercise care and safety in having a firearms licence "because of [my] assessment of his character". There was no evidence though that Mr Harmon was aware of the requirements with respect to firearms licence. I accept, though, that he regards the Applicant as a person of good character.
Informed character references provide an insight into the character of an applicant and are afforded significant weight in the determination of a review. For this reason, I have attached greater weight on the reference from Mr Fenton because he is aware of the requirements of a firearms licence holder and has observed the Applicant's conduct on the firing range. I accept that both statements describe a responsible and careful firearms user over many years. There was also no dispute that the Applicant has no criminal history,
The Applicant has engaged in significant community service as a member of the Australian Air Force Cadets (AAFC) for about 28 years from the age of 18, attaining the rank of Flight Lieutenant. He was attached to the squadron based in Inverell and would be responsible for the management of cadets including while undertaking shooting exercises about three to four times a year at the Inverell Firearm Range, where we would use .22 rifles, and later the F88 Steyr, for target practice. He wrote that many of the cadets had not used firearms before and it was critical that the highest standards of safe firearm handing were required. For three years he was also tasked as the detachment commander of the annual Operation Wombat, a week-long field and training exercise conducted around Inverell, involving AAFC squadrons from all over NSW. I accept that the Applicant, for many years, engaged in structured community service with the AAFC. That role is likely to have been complex in managing the volatile combination of young people and firearms.
The difficulty with the references and the Applicant's AAFC experience though, is that both point to the Applicant being a person very familiar with firearms who clearly knew the importance of safety. The Applicant readily admitted to Police that he was aware the firearms should have been stored in the safe. In his statements and his evidence he also stressed his awareness of the correct storage protocols. His failure to follow those protocols demonstrates, in my view, a contempt for the licensing regime, putting his own convenience above his legal obligations, and a disregard for the safety of the public, and in particular, his son.
The Respondent submitted that the Applicant's obfuscation about the reason the firearms were not properly stored demonstrates that he is a person lacking in the necessary fitness and propriety to hold a licence. The Respondent referred me to Saxby v Commissioner of Police [2021] NSWCATAD 275. There I considered that it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240. In Re Davis (1947) 75 CLR 409 the High Court held that dishonesty and a lack of candour and frankness demonstrates that a person is not of good fame and character. More recently, the consideration of whether, in all the circumstances, there is a real and appreciable risk to the public if the person has access to firearms has been held to apply to the assessment of both a person's status as a fit and proper person and the public interest: Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264 citing, at [74], Masterson v Commissioner of Police, NSW Police Force [2017] NSWCATAP 206 at [130] - [134]. As discussed above, I formed the view that the Applicant's explanation about the temporary nature of the placement of the firearms in the wardrobe to be implausible and that, on balance, especially having regard to his admissions, he is likely, contrary to his recent accounts, to have routinely located firearms in his wardrobe.
For the reasons given above, I cannot be comfortably 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.
[4]
Public interest
The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that the Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act; public safety is given paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal's task is to consider the risk that an applicant will misuse a firearm in a way that impacts the public interest. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]-[66]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].
The "public interest" has been held to require that all licensees are aware of, and comply with, the legislative requirements: Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 at [41]. These requirements include safe storage requirements.
Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances where, nonetheless, it can be in the public interest for an applicant to hold such a licence.
The Applicant, in his 2022 statement wrote that he seeks a licence because he lives on a rural block and requires a licence for the control of fox and rabbit vermin, hunting of goats, and euthanising farm stock when required. The Applicant lives and owns a rural property on 34 acres and also manages his mother's property of 100 acres at Gilgai. He wrote that he also has permission to shoot on a property known as "Burundah", owned by a Mr and Mrs Burrows.
I accept that, there is some public interest in law-abiding farmers and graziers having access to long arms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 (McGrath) at [66].
The Applicant, in his 2022 statement wrote that he also seeks a licence for recreational use.
Private interests such as those expressed by the Applicant, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
The caveat in McGrath is that those on the land having access to firearms must be law-abiding. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. In determining the likelihood that the Applicant will not store firearms and ammunition safely in the future, the Tribunal has recognised that the past conduct of an applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]; Cooper v Commissioner of Police [2022] NSWCATAD 195 at [60]. In O'Brien v Commissioner of Police [2022] NSWCATAD 259 at [59] the Tribunal noted that it has been widely accepted that, while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance.
The Applicant, notwithstanding his long usage of firearms and professed awareness of the legislative responsibilities, has demonstrated a clear disregard for those obligations; I have found he is likely to have routinely located firearms in the wardrobe for ready accessibility. Even on his own evidence, he knew the firearms should not have been placed in the wardrobe, even temporarily, putting his own convenience ahead of those obligations. I cannot be confident that his own convenience would not again override his adherence to his statutory responsibilities.
It cannot be said that the Applicant's contraventions of the Act were merely technical. The contravention was a fundamental breach of his safe storage obligations. The location was completely unsecured and could be accessed by the Applicant's son or anyone entering the house. Although the bolts and ammunition were separate to the firearms they were in very close proximity and this clearly posed a significant public safety issue as his son, was in the house. Even if the firearms were only in the wardrobe for 90 minutes as the Applicant claimed, he could easily have locked them in the safe but chose not to do so.
In summary, the contravention by the Applicant was not trivial and it is clear that it posed a risk to public safety. Overall, I cannot be satisfied that he would not in the future engage in similar conduct. While I accept that the Applicant has a genuine reason for a firearms licence in order to control vermin on his property, that does not outweigh matters of public safety.
I therefore find that it would be contrary to the public interest for a licence to be issued to the Applicant at this time.
[5]
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: 08 January 2024
Parties
Applicant/Plaintiff:
Griffey
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Cases Cited (22)
Tribunal's approach
Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].
What was the outcome of the charges?
On 25 November 2020 the Applicant was found not guilty of the charge of not having approved [firearms] storage. The 3 counts of not keep firearm safely were proven but were dismissed under s 10 of the Crimes (Sentencing and Procedure) Act 1999. I observe that, had the Applicant been convicted of such an offence he would have been precluded from holding a firearms license for 10 years: s 11(5)(b) of the Act and cl 5 of the Firearms Regulation 2017.
The effect of the first finding was that the Magistrate was satisfied that the Applicant had a safe storage facility for his firearms. There was no dispute before me, or even perhaps before the Magistrate, that the Applicant had an approved firearms safe, which was located in the shed. The Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed, in determining whether the issue of a licence is contrary to the public interest: Joseph v Commissioner of Police [2017] NSWCA 31 at [62]-[64]. It is the conduct, rather than the conviction, that is of concern to the Tribunal: Esterman v Commissioner of Police [2014] NSWCATOD 70 at [30]. I do not regard the circumstances, set out below, are supportive of a finding that the Applicant contravened s 40(1) of the Act, even on the lesser civil standard.
The effect of the finding in relation to the not keep firearm safely charges, meant that the Magistrate was satisfied, to the criminal standard, that the Applicant had not kept the firearms safely. While the Magistrate had the benefit of the Police statements, the BWV was not played at the hearing. The Magistrate accepted the Applicant's evidence that he had not returned the firearms to the safe in the shed because of his concern about mosquitoes. He considered the Applicant could have applied spray to himself and thereby could have returned the firearms to the safe in the shed. The Magistrate accepted that the Applicant had been "totally co-operative" with the Police.