Hermann v Commissioner of Police

NCAT Administrative and Equal Opportunity|2019-12-02

Background

The Applicant, Bradley John Hermann is the holder of a Category H Firearms Licence that was issued for the genuine reason of business or employment, in connection with his employment as an armed security guard. Following an incident on 2 May 2019 when he was performing duties as a security guard at a Jewish school, Moriah College (the School), during which he drew his weapon, his licence was suspended, and then revoked. He now seeks review of that decision.

Legislative scheme

The general principles of the Firearms Act 1996 (the Act) are set out in s.3 of the Act: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Evidence

In addition to the s 58 documents, the Respondent provided an extensive bundle of documents, including CCTV footage of part of the incident. It also included material from Challenger Security Pty Ltd (Challenger), the Applicant's employer in relation to its procedures and training material. Evidence was also available in respect of the security threat level at the time of the incident. I also had the transcript of evidence given at the stay hearing before Senior Member Ransome.
In addition to their statements, evidence was given at the hearing by the Applicant, Darren Krug who is a Director of Challenger, and Peter Rowe who is a firearms instructor trainer. Mr Rowe has been involved with Challenger for some time and his report acknowledges this conflict of interest; in his evidence he spoke of his 20 years of knowledge of Challenger and experience with the Community Service Group (CSG), which provides security advice to the Jewish community. Mr Rowe was engaged to provide 'expert' evidence on the reasonableness of the Applicant's actions. Mr Rowe purported to also provide expert advice to the Tribunal on the law in NSW but I have disregarded that aspect of his evidence - the Tribunal is able to make its own findings on the law, assisted by the parties' submissions.
The Respondent called evidence from Licensing supervisor Sergeant Bolt, Licensing officer Leading Senior Constable Zahra, and Senior Constable Ongsritrakul who attended the incident, and who spoke with the Applicant.

Events leading up to the Applicant drawing his weapon

On 2 May 2019, the Applicant and three other armed security officers were on duty at the School. The Applicant was armed with one of his employer's firearms. The licence issued to Challenger was subject to conditions restricting the use of its firearms to "static guarding, uniformed and strictly for the protection of cash and valuables only and not for any other purposes" at a number of listed locations, which included the School. The licence conditions also expressly stated that "Firearms are not to be used for alarm responses and patrols".
On 29 April 2019, that is, 3 days before the incident, a security bulletin had been issued raising the alert level for the Jewish community to "heightened" following antisemitic activity overseas. In particular, the bulletin referred to potential threats against Jewish community sites, and that "suspicious people … around Jewish buildings" should be reported. Not long before this, there had apparently been a direct threat to a Sydney synagogue.
According to the Applicant, briefings were conducted by Challenger about the heightened threat level and consequently were looking out for a possible attack. Mr Krug said that the company had put its guards on greater alert and had increased foot patrols. Against this background, the Applicant said in his evidence there were 'daily' antisemitic threats and only a couple of months beforehand there had been an intruder who had been crouching in the bushland, observing the children.
Immediately adjacent to the School's Early Learning Centre (ELC) is a densely vegetated reserve, described by Leading Senior Constable Zahra as 'scrub'. According to Leading Senior Constable Zahra the reserve has an "approximately 7 foot" chain wire fence and is not accessible to the public, as it is said to contain an endangered ecological community.
At about 2:45pm, at the end of the school day, a person, who I will call "Mr A", was observed on the School's surveillance cameras on the public footpath adjacent to the School and near the pick up zone. When Mr A could no longer be seen by the surveillance cameras, the Applicant and his colleagues were directed by the supervising security officer to try to locate him. Mr A was observed to have climbed a 6 foot fence and move into the reserve. In his evidence before me the Applicant said he had listened to some radio traffic and he was directed to secure his post by locking the gate and to move to enter the reserve in the vicinity of the ELC. The Applicant gave evidence that the students were moved into lockdown in the ELC.

The Applicant draws his weapon

The Applicant left his post and entered the Reserve through a gate in the fence. He said he performed a zig zag movement and, when he was about halfway along the path, he first saw Mr A, who had moved into more dense bushland, crouched about 15-20 metres away from him towards the side fence and 'looking into the School', which, in the Applicant's view was 'possibly surveillance'. Senior Constable Ongsritrakul's evidence was that the Applicant told him that he first observed Mr A crouching in bushes in the Reserve about 15 metres from the School fence. In the stay application the Applicant said that when he first saw Mr A, he was about 5-10 metres away from him. The Applicant told Senior Constable Ongsritrakul that the first thing he had said to Mr A was 'show me your hands and get down on the ground'. The Applicant told him he drew his firearm and pointed it at Mr A when Mr A was crouching in the bushes as he did not know what he had on him and he was worried about the kids in the School. At the stay hearing the Applicant said he did not see if Mr A was holding a weapon and he concluded that Mr A was intent on doing harm as he had jumped over the fence and was trying to conceal himself by crouching behind a bush. He did not introduce himself to Mr A and did not ask any questions, as he believed Mr A was a threat and that he had to take control of the situation. At the stay hearing he said that when he was about 5 metres away from Mr A, he did not ask Mr A what he was up to, but yelled out 'Security, come out, show me your hands'. Before me he said he gave him the command "Security! Stop! Show me your hands". At the stay hearing he said that, at that stage Mr A had not done anything to threaten him and that it was Mr A's failure to comply with his command and in moving towards the ELC that caused the Applicant to draw his firearm and point it at Mr A; before me he said that it was when Mr A did not stop, and started moving quickly to within the about 5-7 metres from the fence to the ELC. The Applicant said that when Mr A got up and started moving, he could see the bulge under his shirt.
In his evidence before me the Applicant said he could not determine the level of threat and due to the fact that Mr A had been non-compliant and due to the unknown circumstances, he made the decision to draw his firearm. He thought he did not have enough time to enter into negotiation with Mr A and had no way to determine his intentions. He was unable to determine the level of threat because of the lack of vision in the bushland, but formed the view that Mr A was there to do harm. He had 'one second' to decide, or lives may have been lost. There was no time for him to call the Police. He said he thought Mr A had some form of ill-intent towards the children and himself and for that reason, he drew his firearm. When he drew his firearm he had his finger outside the trigger guard, rather than placing his finger on the trigger. He would not shoot for non-compliance with instructions and would only have fired at Mr A if he had produced a weapon and started approaching him. When asked that 'when you pull out a firearm that is an indication that you intend to use it' - the Applicant said 'possibly'.
When Mr A did not immediately comply with his direction, the Applicant said he called for backup and the other security officers arrived in about 90 seconds. They struggled to get Mr A onto the ground. They handcuffed him behind his back. It was then that the Applicant returned his gun to its holster.
Mr A was searched and was found to be in possession of a bum bag that contained only his wallet and keys. The video evidence and photo of Mr A show a relatively small bum bag. Mr A was detained until Police arrived a short time later. Although the COPS Event made no reference to it, Police searched Mr A and found a small pocket-knife of less than 5 cm. Mr A told Senior Constable OngsritrakuI that he had the knife to cut his clothing in the event of snake bite; in his evidence Senior Constable OngsritrakuI described the knife as one that 'wouldn't do any harm' and that was returned to Mr A as it was 'not a proper knife'. He conceded in cross examination that the capacity of a knife of that size to cause harm would depend on the sharpness of the blade, which he did not inspect. The knife was returned to Mr A by the Police before being allowed to leave, after being cautioned for trespassing on the reserve. Senior Constable OngsritrakuI's impression of Mr A was that he was 'simple, but truthful'. The Applicant gave evidence that he was not concerned about the pocket-knife, but it is unclear if this was what accounted for the 'bulge' the Applicant had observed, or if it was the bum bag.
Later that afternoon the Applicant commenced preparing the incident report. There he recorded that when he first saw Mr A "concealed in bushes" in thick foliage in the reserve. He gave the following instructions: "Security! Come out and show me your hands; show me your hands". He wrote that Mr A disregarded his instructions and started walking along the boundary fence toward the ELC building which is located nearest to the reserve. At that point he could see a "bulge in [Mr A's] waistline on the left side" and the Applicant then drew his firearm as he believed Mr A "had a concealed weapon and that his life and the lives of others were in grave and imminent danger". In his evidence he said he just did not know what it was. He again instructed Mr A to come out, show his hands and to get onto the ground. Mr A stopped, with his hands showing, but did not get to the ground, as instructed. Other officers, with whom the Applicant had radio contact, arrived and Mr A was said to have resisted arrest and had to be physically brought to the ground. They handcuffed Mr A and the Applicant then holstered his weapon as he believed Mr A no longer posed a grave and imminent threat. The incident report did not refer to the pocket-knife that Mr A was carrying when he was apprehended.

Consideration

At the outset, it is important to note that the Respondent has not sought to suggest the Applicant is not a fit and proper person to hold a firearms licence. It is observed that the Applicant has never drawn his firearm in the 16 years he has held a licence.
It is well accepted that a firearms licence is a privilege and not a right. Licence holders have serious responsibilities and 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].
Investigating Police expressed a view of the Applicant's actions during the incident in a detailed COPS Event: In respect to the drawing of the firearm from the holster, Police were satisfied that Hermann has encountered an extraordinary activity that was highly suspicious in nature. That the male POI had concealed an object under his clothing that could not be determined. That the male POI had undertaken deliberate and unauthorised actions to access the bushland area. That the male POI had given strong indications that there was an interest or intent connected with the college which could reasonably have been considered as criminal. That Hermann was aware of the heightened risk rating and that the male POI was located in close proximity to an early childhood learning centre which was egressing children at the time of the incident. That the male failed to respond to Hermann's challenge or further explain his behaviour. That the male then moved in a manner that could reasonably be interpreted as further approaching the College grounds. For these reasons Police are satisfied that the drawing of the firearm from the holster by Hermann was warranted relevant to the circumstances of the interaction with the POI.
It was acknowledged in the decision under review that, in summary, investigating Police were of the view that the Applicant had acted on reasonable grounds in apprehension of imminent danger to people and property in the School. The decision records at [4]: Police have recorded that your actions on the day of the incident appeared reasonable based on the victim's behaviour, the raised risk rating issued by [CSG] on the 29th April 2019 and the unidentified article concealed under the victim's shirt, that you thought may have been an IED [although this was subsequently corrected to 'a weapon'].
Nonetheless, the Applicant's firearms licence was revoked based on the Applicant's use of his firearm during the incident being contrary to the authority of his firearms licence and the conditions of his employer's firearms licence. An individual who draws a loaded firearm contrary to the conditions of the licence, and without real justification the Respondent submitted, was considered to be not someone who can be trusted to possess and use firearms without putting the safety of the public at risk, and that the Applicant should have complied with [his employer's] 'bomb threat' protocol and acted to 'isolate, evacuate and wait for police to negotiate'.

Did the Applicant act contrary to the authority of his firearms licence?

Section 7 and s 7A of the Act create offences relating to the contravention of any condition of a licence or the use of a firearm for any reasons other than the purpose established as the genuine reason. There was no evidence that the Applicant has been, or is proposed to be, charged in relation to any such offence.
Mr Rowe suggested that the 'genuine reason' is only relevant when an application for a firearms licence is made, and that, while a person may have a genuine reason at the time the application is made, thereafter can use the firearm in a manner inconsistent with the genuine reason when, as here, the Applicant believed that he was entitled to so use it. I completely reject Mr Rowe's contention, as it does not accord with the objects and principles of the Act and does not take into account other aspects of the Act, in particular the offences set out in s7 and s7A. I do not accept the contention that the genuine purpose test refers only to the purpose and intention for applying for and having the licence in advance, not the prescribing of conduct into the future.
The Respondent submitted that the Applicant who was armed with a pistol, had no authority to leave the School, moving from his static post and arrest and handcuff a member of the public at gunpoint, and then search him in the absence of Police.
Mr Rowe gave evidence of how security guards are trained. The Class 1F security licence held by the Applicant allowed him to protect approved types of property. The licence however, does not authorise the use of firearms for all types of security activities other than as identified in the licence and, relevantly, does not allow the use of a firearm to protect the School students.
Contrary to the submission on behalf of the Applicant that he acted in defence of others in drawing the firearm, the Applicant in fact, on the terms of his licence, had no authority to use his firearm to protect or defend people. The delegate took the view that any use of a firearm for a purpose not included in the licence conditions (including conduct in defence of the life of a licence holder or another) was a breach of the licence. The Applicant submitted the delegate's approach misconceives the purpose of licensing conditions and their interaction with the general law of the state. If the Respondent's position were correct, it was submitted, it would create the absurd scenario that an armed security guard would be forced to allow 'mass murder' to occur (or indeed to be themselves killed) in order to not be in breach of their licence. However, it cannot be said, as was asserted, that using the firearm for personal protection contrary to s 12 is in connection with a genuine reason allowed under the Act.
I find that the Applicant breached the condition of his firearms licence in that he used his weapon other than in accordance with his licence condition.

Did the Applicant act contrary to the conditions of his employer's licence?

Challenger holds a category H Licence issued under the Act, to possess a number of registered pistols for the genuine reason of allowing its employees to possess or use a pistol. The conditions of the Challenger's licence restrict the use of firearms to: Static guarding, uniformed and strictly for the protection of cash & valuables only and not for any other purposes at the locations listed below …
In addition the condition specifically noted that firearms were not to be used for armed responses and patrolling.

Condition: static guarding

The Applicant pointed out that the antonym of "static guarding" is "mobile guarding", and suggested that the latter is where the guard patrols in a vehicle or moves between different sites. In the context of Challenger's licence, I consider the condition permitting only 'static guarding' prohibits, as a minimum, Challenger's employees from moving between the listed premises while armed.
As to whether there is a broader prohibition, namely moving within one of the sites, the Respondent suggested that 'static guarding' does not include patrolling within the one site; neither did it allow moving from one fixed place to another fixed place within one discrete site. It was submitted on the Applicant's behalf that this latter interpretation was impractical in suggesting that security guards cannot move from different parts of one site to another. While there is no definition of 'static guarding' in the Act, Sergeant Bolt considered the ordinary meaning applied, that is, to work from a fixed position; but that that did not necessarily mean that a guard could not move from one post to another. That differed from "mobile patrolling" which would entail patrolling by moving around a site.
The Applicant's evidence was that his role was not just working at a static post but patrolling the site. Mr Krug said that he understood 'static' to mean 'at the site' and not just 'standing still'. Mr Rowe's evidence was that it is common practice for armed security guards to patrol, walking from one position to another and checking buildings for which they are responsible; a guard is rarely at only one fixed position in a long shift. In relation to Mr Rowe's evidence comparing "mobile patrols" and "static patrols", the Respondent submitted the word 'static' qualifies the use of the word "guarding". I agree that the approach advanced on behalf of the Applicant, does not give any work for the word "static'" in the condition.
The condition in Challenger's licence does not limit the exercise of a security activity, only the use of firearms. I observe that, notwithstanding Mr Rowe's experience, firearms are specifically prohibited from being used for patrols. The Respondent contended though, that while it may be common practice to patrol the School from certain static posts, the licence does not allow that activity to be carried out whilst armed.
The reason given by the Applicant for drawing his firearm was that he was to protect himself and those inside the School from a perceived threat. Mr Rowe suggested that it would be unreasonable for a security operative to remain at a static post where there was a terrorism incident. The Respondent submitted that, if a terrorism incident were to occur at the School the appropriate response would be to involve the NSW Police to respond. While ideal, circumstances may not permit this considered approach.
It is not necessary for me to decide if carrying a firearm from post to post contravenes the condition of Challenger's licence because, in any event, the Applicant has acted contrary to the licence conditions in leaving the site, as there was no authority for him to be in possession of the firearm other than at one of the sites specified in Challenger's licence, such as the School. He had no authority to take the firearm into the bushland. While it may have been impractical to return his firearm to the storage location, it remains, he had no authority to take it into the reserve in order to investigate Mr A's activities.
I therefore find that the Applicant contravened the condition of his employer's firearms licence in relation to static guarding.

Condition: strictly for the protection of cash & valuables only and not for any other purposes

Section 12(2)(a) of the Act specifically excludes "personal protection or the protection of any other person" from the genuine reasons a person may hold a firearms licence. The Respondent informed me, and I accept, that there is no provision whatever in the legislation for armed bodyguards. By that, I understand that there are no circumstances where an armed security guard can be engaged to provide personal protection to a person or group of persons.
I do not know the terms of Challenger's contract with the School in relation to the security services it, through its employees, was to provide. Nonetheless, Challenger, and its employees could only act in accordance with Challenger's licence, and that necessarily precluded armed security services for the protection of the children and staff at the School. Indeed, at the very commencement of Challenger's standard operating procedures (SOP) for the use of a firearm set out in its Company Firearm Procedures Manual it specifically notes that: Armed guards are employed for the protection of critical infrastructure and cash & valuables.
The use of a firearm is referred to there as 'a last resort'. It was then somewhat contradictory to its SOP opening in relation to critical infrastructure and cash & valuables though, that the use of a firearm is to be used 'only in reasonable self-defense (sic) or defense (sic) of another person where there is a real an (sic) impending threat to life'. This was not qualified as referring only to such threat occurring in the context of protecting cash and valuables.
Mr Rowe expressed incredulity with a proposition that a security guard, faced with circumstances which he regarded as posing a direct of perceived threat to the children at the School would never be authorised to use his firearm, notwithstanding that the authorised use of the weapon was for the purposes of protecting property, cash and valuables.
Mr Rowe referred to s 418 of the Crimes Act 1900 which provides a defence to criminal liability of self-defence if the person believes the conduct - in this matter, drawing a weapon - is necessary to defend himself or another person (s 418 (2)(a)), or to protect property from unlawful taking, destruction, damage or interference (s 418 (2)(c)), or to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass (s 418 (2)(d)). In each case, the conduct must be a reasonable response in the circumstances as he perceives them. There is no suggestion, as far as I could see, that there has been any consideration to charging the Applicant for assaulting Mr A by pointing his firearm at him.
The Tribunal is considering the Applicant's conduct and the circumstances of the matter to determine whether the Applicant should be allowed to continue to hold his licence. The Tribunal has long held that it is the conduct of the Applicant that is relevant to its consideration of the whether it is appropriate for the Applicant to continue to hold his licence, not the fact of a criminal conviction or if the offence has been proven: see Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph) at [62] - [64]; Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100; Nadan v the Commissioner of Police [2020] NSWCATAD 92. There is no question in this matter of the criminal law "overruling" the administrative law, rather the matter involves a consideration of the Applicant's conduct in the course of the Tribunal's exercise of its discretion under the Act. If, as Mr Rowe suggested, the criminal law defences allow the Applicant to effectively act contrary to the Act or the conditions of a licence without any licensing sanction, then this would counter what the Court of Appeal said in Joseph that the Commissioner (and the Tribunal on review) is to take into account the conduct of the Applicant in arriving at the correct and preferable decision. Consequently, the argument raised by the Applicant, relying on Mr Rowe's evidence that the Applicant should be allowed to rely on s 418 of the Crimes Act falls away and the consideration turns to the conduct of the Applicant rather than whether he can raise a defence to behaviour that would otherwise be criminal; while the section may provide a defence to criminal liability, I agree with the Respondent's submission that such a defence is irrelevant in the present context.
The Applicant gave evidence that he understands that the scope of his authority is limited to protecting goods and valuables. He did not know if he had any power to arrest someone on the reserve. He said he believed that he had the power to demand Mr A comply with his direction as a power afforded to security guards, notwithstanding that it was clear to him that his concern at that time was not with protecting goods and valuables, but the overall security of the School and those in it.
I find that the Applicant contravened the condition of his employer's firearms licence in relation to using a firearm other than for the protection of cash & valuables only.

Should the Tribunal exercise its discretion not to revoke the Applicant's firearms licence in view of the breaches of conditions?

I have found that the Applicant used his firearm other than in accordance with his licence condition. I have also found that, he was in breach of terms of his employer's licence in using his firearm other than for static guarding and other than for the protection of cash and valuables.
I am very aware that the concept of the 'public interest' is designed to give broader interests of the community priority over private interests. In the context of the Act, the Tribunal must be satisfied that there is virtually no risk. The Tribunal has described this is a high standard to meet: Sheehan v Commissioner of Police, NSW Police Force [2017] NSWCATAD 232. The public's right to safety must outweigh an individual's privilege to possess and use a firearm or any financial impact that might flow from the loss of the licence Huckel v The Commissioner of Police [2008] NSWADT 347 at [41]. I accept that the Applicant has a blameless and lengthy record as a security guard and that revocation of his licence may impact upon his income. However, it has been held that while the loss of income is not an irrelevant factor in the exercise of discretion under the Act, it is to be weighed against the primary factor of the overriding need for public safety and also against all other relevant considerations. In any event, an Applicant's personal interest in having his licence cannot outweigh the public interest: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [22]. His personal interests are therefore quite secondary to the public interest.
I observe that the licensing requirements are strict, but such breaches do not mandatorily result in the revocation of a firearms licence; s 24(2)(b)(iii) of the Act prescribes a firearms licence may be revoked if the licensee contravenes any condition of the licence. I have taken the view that these breaches are also relevant to the consideration of the public interest, which, itself, involves the exercise of the Tribunal's discretion. It would be a curious result if the exercise of the Tribunal's discretion were not applied consistently in the matter.

Can the Tribunal be satisfied that it is not in the public interest for the Applicant to continue to hold the licence?

As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the 'public interest' is: … an inherently broad concept giving the appellant the ability to have regard to a wide variety 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 elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate 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.
A discretion to make a decision 'in the public interest' is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].
The Appeal Panel stated in Constantin v Commissioner of Police [2013] NSWADTAP 16, at [33], that: The "public interest" allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
In general, the possession and use of firearm is a privilege, conditional on the overriding need to ensure public safety: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
The Respondent submitted that it would be contrary to the public interest for the Applicant's firearms licence to be reinstated. The Respondent submitted there was no justification for the Applicant to draw his firearm and aim it at Mr A in circumstances where it was not known that Mr A had a weapon. The Respondent submitted that it was of note that the Applicant made no attempt to engage or speak with Mr A before the first command was made and he drew firearm. At the time the Applicant drew his firearm all of the children and staff had been locked down in the ELC. Between Mr A and the School was a 6-7 foot chain wire fence with barbed wire on top leaning towards the reserve to make climbing over the fence difficult. Mr A was unarmed, quiet, not aggressive and was effectively surrounded by other armed security officers as well as the Applicant. There was no evidence that Mr A made any movement that could have been interpreted as a move towards a concealed weapon, and that what led to the Applicant's drawing of his firearm was that Mr A was crouched down in the reserve and that he did not yield to the direction of the Applicant.
The Applicant, on the other hand, suggested that the Tribunal should adopt the initial views of investigating Police that the Applicant had acted properly in the circumstances, although they took a different view subsequently: see [25] above. It was submitted on the Applicant's behalf that he had behaved as a reasonable person would, and that this should not be a basis to strip him of his licence and right to work.
It is clear to me that the circumstances giving rise to the Applicant's actions were out of the ordinary. The School was on high alert due to heightened concerns arising, amongst other things, from the recent antisemitic terrorist activity overseas. The Respondent submitted that the increased threat rating did not mean anything more than security officers were to be more vigilant and be ready to deal with the risks. Mr Rowe gave evidence of 'consultation with the NSW Police Counter Terrorism Command' by Jewish security groups, which I accept. Contrary to the Respondent's assertion, the Applicant provided evidence about the risk assessment information it had provided to Police in support of its firearms licence. Also, contrary to the Respondent's assertion, there was, in my view, clear evidence that the prevailing level of alert had been increased and that this had been conveyed to the Applicant and the other security guards. Mr Krug's evidence made it clear that the Police were provided with the School's Risk Assessment document to support its use of firearms for guarding. Mr Krug's evidence was, that, at no stage have Police sought to revoke Challenger's licence, nor have Police, in the six or seven audits undertaken, raised any concerns about Challenger's protocols, nor, relevantly in respect of its 'static guarding' regime. Police have acknowledged that the site, may be a target for antisemitic activity.
At the time of the incident, the Respondent pointed out, all the children and staff had been locked down in the ELC, so any risk to them was reduced. To me, though, that that step was undertaken is indicative of the perceived level of threat amongst those charged with securing the School, particularly in circumstances where Mr A had been lost from electronic surveillance.
The Respondent was critical of the Applicant for not negotiating with Mr A and that the Applicant did not consider other possibilities as to why Mr A may have climbed the fence into the reserve and was crouching in the bushes. The Respondent was critical of the Applicant for not gaining 'situational awareness' before drawing his firearm and pointing of it at Mr A, thereby creating risks of safety to the public and resulted in an escalation of the situation.
The Respondent also relied on there being no attempt to 'negotiate' or even engage with Mr A, and the Applicant just required Mr A to comply with his direction. While the Respondent submitted that there was no attempt to speak with Mr A, the circumstances, in my view, did not permit such engagement before the Applicant directed Mr A to show himself and get to the ground. It was only when he did not comply that the Applicant drew his firearm. Sergeant Bolt's evidence was that, in his opinion, the Applicant's act of drawing his firearm escalated the situation making other options more difficult or complicated to utilise. It is unclear what 'options' might have been better alternatives to the course adopted by the Applicant. The Applicant drew his firearm, without asking what Mr A was doing and thereby denying Mr A an opportunity to explain himself. Mr Rowe did not suggest that a security officer is authorised to require a person to submit to their direction but suggested that 'action is faster than reaction'. I do not agree with the Respondent's submission that if the Applicant believed that he could only safely respond to any potential threat by drawing his firearm, then it is clear that he was too close to protect himself from any such possibility. Instead, in my view, this highlights the Applicant's perception of Mr A's conduct. While the Applicant did not believe the drawing of the firearm was an escalation of the situation, it objectively elevated what might have been a routine apprehension of a possible intruder to a more dramatic encounter. However, once again, the context, in my view, informed the Applicant's actions. Even Sergeant Bolt in his evidence described the circumstances, somewhat reservedly, as 'nuanced'.
The Respondent submitted that although at the time that the Applicant drew his firearm Mr A was effectively surrounded by armed security officers and the only way that he could have reached the ELC was by scaling the barbed wire fence. However, that there was a high barbed wire fence, may have been no impediment if Mr A had been suitably armed.
As it transpired, Mr A was unarmed, but the Applicant did not know that at the time he drew his weapon. The Respondent described Mr A as being non aggressive but he appeared to have resisted attempts by the Applicant's colleagues to restrain him. The Respondent submitted that there was no evidence that Mr A made any movement that could have been interpreted as a move towards a concealed weapon. The Applicant's evidence was that he simply did not know if Mr A was armed. What led to the Applicant's drawing of his firearm was that Mr A did not come out from his crouching position in the bushes.
It was submitted by the Respondent that the conduct of the Applicant created risks to safety rather than dealing with the potential or perceived risks. The Applicant gave an account, which I accept, that, by the location of his finger with respect to the trigger, there was no great risk of the weapon accidentally discharging; the Applicant has held a licence for some years and, I accept, is familiar with safety aspects of weapons' handling. His evidence was that he would only discharge his firearm if he could determine that there was a lethal threat to somebody. While there was a minor degree of risk with respect to Mr A, that risk was insignificant compared to the perceived risk to the School community. The Applicant justifies the drawing of the firearm on the basis that he believed that Mr A had a concealed weapon and that [his] life and the lives of others were in grave and imminent danger. The Respondent submitted that it is clear that the conduct of the Applicant was excessive in all of the circumstances because Mr A at all times remained outside the boundaries of the School and did not in fact possess a weapon that could cause harm to the occupants of the School throughout the duration of the incident. In his evidence the Applicant said that he drew his firearm and pointed it towards Mr A as he believed that there was an imminent and pressing danger to school children as he felt that his life and the lives of the children were in imminent danger. With the benefit of hindsight, there was no basis for such a belief as Mr A's conduct was nothing more than the act of a trespasser wearing a bum bag which contained only keys and a wallet. There was no deliberate act or conduct of Mr A suggesting that he was armed, nor audible threats from Mr A. He was trespassing on land adjacent to the School and was seen to be crouching in the bushland, and the Applicant concluded that he was hiding from security guards. The Respondent submitted that there were a number of possible reasons why someone could be crouching down in the bushes, but it is difficult to conclude that his presence was totally benign, given that he had gone to some trouble to get into the bushland. The Respondent submitted that the Applicant's act in drawing his firearm and aiming it at Mr A could only have been for the purpose of threatening Mr A to obey the Applicant's direction, or for the purpose of preparing himself to discharge the firearm, if necessary. In cross examination Mr Rowe did not suggest that a warning shot was something that a security guard should use in any situation. The Applicant described a suggestion of a 'warning shot' as 'laughable', although this, as an 'option' would certainly, in my view, have escalated the situation further.
Mr A's explanation to the Police was that he wanted to do some bushwalking, not knowing that the School was nearby and not knowing that the security guards engaged by the School were on a heightened state of alert due to incidents that occurred overseas. The Respondent conceded in its submissions that while the conduct of Mr A was suspicious, but submitted that the response of the Applicant in drawing his firearm was not justified or reasonable in the circumstances.
Mr Rowe's suggested that in his view the bum bag with keys and a pocket knife present the same appearance as a potential firearm, but it was clear that the Applicant had no idea what was under Mr A's shirt and there was no suggestion in his evidence that the bump looked like a concealed weapon. Mr Rowe suggested that the Applicant was justified in arresting Mr A as there was a 'distinct possibility' of a threat towards the Applicant, the school and students. Mr Rowe considered the Applicant's response to be reasonable but the Respondent submitted that the response became unreasonable after it was clear that Mr A posed no threat and possessed no weapon. In his evidence the Applicant said that the threat that Mr A posed and any weapon that he may possess were "undetermined". In my view it was only after Mr A had been finally taken to the ground by the other security guards that the Applicant could have confidently determined that Mr A posed no threat and possessed no weapon. I do not accept the Respondent's contention that the Applicant's action of pointing a firearm at Mr A, outside of the boundaries of the School, in the absence of observing a weapon or any real imminent threat was unreasonable and unjustifiable.
The Respondent submitted that the Tribunal's discretion should exercised against the Applicant if he drew his weapon 'without real justification'. I consider, in the circumstances, there was justification. Having regard to the facts and the evidence before me, I am satisfied that the reinstatement of the Applicant's firearms licence is virtually without risk.

Decision

The decision under review is set aside and the Applicant's firearms licence is reinstated.
Pursuant to s 64 Civil and Administrative Tribunal Act 2013 (CAT Act) I order that the disclosure of the following is prohibited: 1. the name of "Mr A" 2. photographs of the School and its surrounds 3. information pertaining to Challenger's risk assessment in relation to the School 4. information pertaining to Challenger's response protocols

Costs

Section 60 of the CAT Act provides, to the effect, that, as a general rule, each party to proceedings in the Tribunal is to pay its own costs. The Tribunal however may award costs only if it is satisfied that there are special circumstances warranting an award of costs. The Applicant made detailed submissions that this was such a case. The Respondent reserved its submission as to costs, pending the outcome of the decision.
I direct that the parties file and serve (by email) submissions in relation to costs as follows: 1. Respondent within 14 days of this decision 2. Applicant within 14 days of receiving Respondent's submission (if necessary)
The question of costs will be determined on the papers.

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: 20 May 2020

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Judgment (15 paragraphs)

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Cases Cited (6)

Cited By (2)