Hoddle v Commissioner of Police

Evidence

1. In addition to the s 58 documents, the Respondent provided a statement by Constable Cameron Taylor dated 17 February 2021 and Senior Constable Blayne Cook dated 23 February 2021. The Applicant provided a statement dated 30 March 2021 and references from Jamie Chaffey, Mayor, Gunnedah Shire Council dated 30 October 2019 and 10 February 2020 and from the Honourable J A L McDonald dated 28 October 2019.
2. Both parties provided helpful submissions.

The Tribunal's approach

1. Section 63 of the Administrative Decisions Review Act 1997 (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. 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]. Under s 28(2) of 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. It is well established that in considering an application for review the 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.

What led to the revocation of the Applicant's licence?

1. The Applicant's licence was suspended subsequent to his arrest on 12 June 2019 in relation to allegations of 'Sexually touch another person without consent - T2'. The reason for suspension provided to the Applicant was that it was not in the public interest [for him to hold a firearms licence]. The suspension, for a period of 12 months, commenced on 24 June 2019.
2. On 28 June 2019, Police attended the Applicant's address to serve the Notice of Suspension and seize his firearms, not, as the Applicant submitted, when Police attended to audit his compliance with his gun licence conditions. Police requested the Applicant escort them to his firearms safe. The Applicant informed Police that his daughter, who did not hold a firearms licence, had the keys. Police entered the office where the firearms safe was located and observed a cardboard box, containing approximately 175 rounds of rifle and shotgun ammunition, sitting on top of the safe. Three firearms were observed in the main compartment of the safe as well as an amount of ammunition stored with the firearms on the floor of the safe. Whilst seizing the ammunition from the safe, Police also located two shotgun rounds on the floor beside the safe, which appeared to have fallen from the cardboard box on top of the safe. Police also noted the safe was not affixed to the structure of the premises and was only secured by two small diameter wood screws.
3. Police observed the magazine missing from one of the rifles, which the Applicant claimed he had lost. One of the Applicant's rifles was missing its bolt, and when asked about it, Police were told it was in a nearby shed. Police escorted the Applicant to the shed, where the bolt was retrieved from an open filing cabinet.
4. The Applicant was subsequently charged with 'Holder of Category A or B licence not have approved storage'. On 5 November 2019 at Gunnedah Local Court, the Applicant was sentenced to a 9-month Conditional Release Order (CRO) without conviction, commencing 5 November 2019 and concluding on 4 August 2020. CROs were introduced as a sentencing option on 24 September 2018 by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. It is a sentence that requires the person to not commit any further offences for a period of time. If further offences are committed during the period of the CRO the person can be re-sentenced for the offence to which the CRO related.
5. On 2 August 2020, the Applicant's AB Category firearms licence was revoked.

Contravention of the Act: s 24(2)(b)(ii) of the Act

1. Section 24(2)(b)(ii) of the Act provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Regulation. Section 40(1) of the Act sets out safe storage requirements - firearms are to be stored in a safe weighing not less than 150 kilograms when empty, or it must be fixed in order to prevent its easy removal, and ammunition for the firearm must be stored in a separate locked container. The offence of 'Holder of Category A or B licence not have approved storage' was proved against the Applicant, but no conviction was recorded.
2. Even though the Applicant was not convicted of that criminal charge, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven, or, as in this case, have been dismissed: see Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [30].
3. The Applicant submitted that in relation to the firearms offence that different Agreed Facts were provided to the Magistrate. The Applicant raised this in his submissions dated 9 February 2021 and was repeated in his submissions in reply dated 30 March 2021. The Respondent did not comment upon the Applicant's contention that the "Facts Sheet" provided in the s 58 documents was not that which was provided to the Magistrate.
4. I accept that the Magistrate, who reviewed the amended facts and character references, dismissed the charge without conviction and that in sentencing the Applicant to a 9-month CRO, regarded the Applicant's offending at the low end of the scale. The Applicant's CRO in respect of the firearms charge only expired in August last year.
5. In applying s 24(2)(b)(ii) of the Act, the Appeal Panel said in Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 at [47]. [the fact an individual] escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for a administrator to take a stand in dealing with serious contraventions that is seen as a credibly by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.
6. The Tribunal, in determining the review, however, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].
7. In Bevan v Commissioner of Police [2004] NSWADT 1, where, as in this case, a contravention had been proven without a conviction having been recorded, the Tribunal stated at [26]: ... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis)
8. The Applicant's contravention in the present matter was not merely a "technical" breach. Police observed that the Applicant's firearms safe was not affixed to the structure of the premises and was only secured by two small diameter wood screws. Further, multiple rounds of ammunition were not securely stored. There was a clear contravention of the safe-keeping requirements.

Contravention of licence conditions: s 24(2)(b)(iii) of the Act

1. Section 24(2)(b)(iii) of the Act provides that a licence may be revoked if the licensee contravenes any condition of the licence. Section 19(2)(a) states that the licensee must comply with the relevant safe keeping and storage requirements under this Act.
2. It is clear from the evidence discussed above that the Applicant contravened the condition imposed on his licence pursuant to s 19(2)(a) of the Act in that he did not comply with the relevant safe keeping and storage requirements under the Act. Furthermore, it is clear that the Applicant also contravened both s 40(1)(b) and 40(1)(d) of the Act in that his firearms were not stored in accordance with the Act.
3. Of additional concern is that when Police attended the Applicant's home on 28 June 2019 to seize his firearms, the Applicant, according to Constable Taylor's statement, told Police that he thought his daughter, who did not possess a firearms licence, had the keys. It is clear that the Applicant contravened s 39(1)(c) of the Act, as he had failed to take all reasonable precautions to ensure that his firearms did not come into the possession of a person who was not authorised to possess them.
4. In his Second Reading speech dated 25 June 1996 at page 3559 of the Hansard, The Hon J W Shaw said: Legislation should have the effect of making a failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the licence and the confiscation of all firearms. Measures should be indicated in legislation for the storage of firearms which are specific and clear so that firearm owners and possessors know their obligations and the following minimum basic standards should apply.
5. Even where safe keeping contraventions lie at the lower end of the scale of seriousness, they can evidence an attitude towards the licensing regime. It was the Applicant's submission that the gun offence relates to the safe storage of licensed guns and ammunition only. It seems to me that this submission may represent a lack of appreciation of the fundamental responsibilities of a licence holder in relation to safe storage.
6. The Respondent referred me to Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 (Uzelac), which considered issues relating to the safe storage of firearms, it was held that the main issue to be decided was whether there was a risk to the safety of the public if the applicant retained the licence. The Tribunal held at [19] that the following should be considered: 1. the reason for failing to store the firearm safely; 2. the length of time the firearm was not stored safely; 3. the potential or real danger posed by failure to store the firearm safely; 4. the person's previous conduct in relation to storage of firearms and any related matter; 5. the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and 6. the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. 7. ...
7. In Uzelac Hennessey DP added, that in relation to the first three considerations, if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. In this matter the breaches were not trivial or excusable; rather, it is clear that the Applicant had failed to "take all reasonable precautions to ensure" the safe keeping of firearms, and to ensure they do not come into the possession of an unauthorised person. The Applicant's daughter, on the Applicant's own account to Police and which was not disputed, had access to his the gun safe. The loose ammunition was accessible by anyone with access to the premises; parts of his firearms were missing. On the available evidence the Applicant appeared to have provided no reason for his failure to store his firearms safely. It is unknown how long the Applicant's firearms were not stored safely. One might speculate that, had Police not attended the Applicant's premises, then the breaches of the Act would have remained undetected. Similarly, the unexpected nature of the attendance meant that the firearms may have been unsecured for some time. Prima facie there was potential danger posed by failure to store his firearms safely.
8. In French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221 at [46], the Tribunal found that, despite the applicant's otherwise excellent and lengthy record, his knowing disregard of specific firearms legislative provisions, including those relating to safe storage, meant that there was a risk to public safety. Further, the Tribunal has held that licence holders must not only understand and comprehend the guidelines and laws relating to firearms, but must also act in accordance with them: Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 at [20].
9. I accept that the Applicant has held a gun licence since 1998 and has not previously come to attention in relation to any firearms offence. With respect to the Applicant's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future, the Respondent submitted that it is clear that the Applicant has demonstrated a careless attitude towards the stringent requirements associated with the safe keeping of firearms and their use by unlicensed persons. In Lynch v Commissioner of Police [2006] NSWADT 80, the Tribunal found that the applicant lacked an understanding of the reasoning behind the statutory storage requirements.
10. I accept that, as the Applicant wrote in his application for internal review, he has since purchased a lockable ammunition container and installed stronger anchorage bolts, but consider that these are matters to which the Applicant should have attended from the commencement of his licence. That he claims to have now studied firearms laws specifically in relation to the safe storage of firearms and ammunition, is, again, something about which he should have made himself aware from the time he commenced to hold his firearms licence. While I may be satisfied that the Applicant having taken remedial steps, may safely store firearms in the future, none of his submissions addressed the concerning access to the safe by his daughter.
11. It is well accepted that any licence in respect of firearms or weapons, is a privilege and not a right. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].

The public interest: s 24(2)(d) of the Act and clause 20 of the Regulation

1. Section 24(2)(d) of the Act provides that a licence may be revoked for any reason prescribed by the Regulation. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
2. The expression "public interest" is not defined in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
3. I accept that, from his statement of 21 December 2020, the Applicant may want a firearms licence for the following reasons:

• Maintenance of a complex and expensive irrigation system.
• Bio security in relation to an export business to ensure there are no feral animals in a commercial orchid.(sic).
• Animal husbandry - the euthanisation of cattle to prevent prolonged suffered (sic).
• Safety - a licence is required due to the presence of eastern brown snakes and the relative remoteness from medical care.

1. Private interests, however, are not the only matters to be 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. I accept that, from the references provided by the Applicant that he is regarded as a person of good character. However, consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They 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]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.
2. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the "fit and proper person" test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety.
3. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: see, for example, Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
4. The Applicant knew his daughter was unlicensed but nonetheless permitted her to have access to the firearms. There was no evidence that the Applicant's daughter no longer can access the firearms safe, and consequently there no evidence before me to be satisfied that there is now virtually no risk.
5. The Respondent placed significant emphasis on the Applicant's conduct which ultimately was dealt with in the common assault charge. The Applicant remains subject to a CRO in respect of that charge. The Respondent provided a detailed account of the allegations against the Applicant. The "Facts Sheet" referred to both the charge of 'Sexually touch another person without consent - T2' and also 'Common assault - T2' was provided. The Applicant submitted that the Fact Sheet was incorrect and did not reflect the Agreed Facts that formed the basis of the plea and what was considered by the Magistrate. The Respondent now seeks to rely on the original facts.
6. In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], the Appeal Panel also observed: It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative decision. 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. (Tribunal emphasis)
7. The evidence of Senior Constable Cook was that whilst the alleged victim was "on board" with the prosecution, he was nervous given the nature of the charge and when the matter was before the Local Court in February 2020 there was a possibility of it being adjourned. This may have been a matter taken into account in withdrawing the charge of 'Sexually touch another person without consent - T2' and proceeding instead with 'Common assault - T2', to which the Applicant ultimately entered a plea of guilty. However, I have no evidence about the reason the more serious charge did not proceed. The maximum penalty for an offence of common assault is two years imprisonment or a fine of up to $2,200: s 61 of the Crimes Act 1900. The Magistrate with the benefit of reviewing the Agreed Facts as presented on the day, the submissions by Counsel and character references decided not to record a conviction but to impose a CRO. The Applicant remains subject to a CRO.
8. The character references provided on behalf of the Applicant all speak highly of him. The Respondent was critical of the references as not having been prepared for these proceedings and do express a thorough awareness of all charges that were brought against the Applicant, particularly concerning the 2019 assault. It is clear though that Mr Chaffey's first reference was for the purpose of the firearms charge, as was Mr Macdonald's. From the date of Mr Chaffey's second reference, it was prepared in relation to the other charge, although it was not specifically mentioned. I accept that the Applicant is well-regarded in the community.
9. The Respondent also relied on allegations against the Applicant for offences of a sexual nature dating back to 2003, where a report was made against the Applicant for 'Actual Sexual Offence - Indecent Assault. The matter was not pursued, apparently at the request of the alleged victim. The matter has never been put to the Applicant and I have disregarded it my consideration of the public interest.
10. In Cleofe v Commissioner of Police, NSW Police Service, Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2 (Cleofe), the Tribunal accepted that one of the underlying principles of the Act is to improve public safety by promoting the safe and responsible storage and use of firearms. One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms: see s 3(1)(b) of the Act. Ensuring that firearms are stored in a safe and secure manner decreases the likelihood that they will contribute to an accidental or deliberate injury or death: see Cleofe at [31].
11. In Foster v Commissioner of Police [2020] NSWCATAD 124 the Tribunal stated at [21]: It has been consistently stated that the legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.
12. I have given significant weight to the fact that the Applicant is currently subject to a CRO in respect of a charge of common assault. In addition to the assault offence, I have found that the Applicant contravened several provisions of the Act in relation to safe-keeping of his firearms and I have given those matters significant weight. I also observe that one of the Applicant's rifles was missing its bolt and another was missing a magazine. This further demonstrates the careless attitude the Applicant had towards his firearms and their safe-keeping. I agree with the Respondent's submission that the contraventions of safe storage provisions committed by the Applicant reflect a careless and concerning attitude towards the strict requirements of the Act and Regulations and it is clear that the Applicant was either unaware or chose to ignore the requirements until Police brought them to his attention on 28 June 2019.
13. The conduct in giving his daughter access to his firearms safe is particularly concerning, and he failed to explain why his daughter, who did not possess a firearms licence, was the only one that knew where the keys for the safe were at the time. I am satisfied that the Applicant's conduct poses a risk to the public safety.
14. As the Applicant's claim of compelling reasons for him to retain his firearms licence, the Tribunal has consistently observed that 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: see Huckel v Commissioner of Police [2008] NSWADT 347 at [41]; Herman v Commissioner of Police [2020] NSWCATAD127at [51].
15. The available evidence cannot result in a conclusion that there is virtually no risk to public safety. Consequently, I find that it is not in the public interest for the Applicant to continue to hold a category AB firearms licence.
16. Having come to that view, it was not necessary for me to consider whether the Applicant is fit and proper person to hold a firearms licence.

Conclusion

1. For the reasons outlined above, the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.

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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: 19 May 2021