Huggins v Commissioner of Police - [2021] NSWCATAD 119 - NSWCATAD 2019 case summary — Zoe

NSWNSWCATAD

Huggins v Commissioner of Police

[2021] NSWCATAD 119

NCAT Administrative and Equal Opportunity|2019-04-08

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2019-04-08

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to revoke the applicant's Category AB Firearms licence on 26 April 2018, and the decision on Internal Review on 19 November 2018 to affirm that revocation.
The revocation was on the basis that the Commissioner believed that it was not in the public interest for the applicant to continue to hold a firearms licence. Initially those matters concerned the manner of the storage of the firearms under the applicant's licence (in commercial premises that would be unattended for significant periods of time), and the identification of a silencer said to be in the possession of the applicant or claimed to be owned by the applicant. Those maters initially brought about the revocation decision.
However, the proceedings evolved from the initial revocation, which at that time did not result in any proceedings for the alleged breaches identified in the revocation decision. After the matter was initially heard by the Tribunal and awaiting determination the respondent applied to have the evidence reopened as fresh evidence had come to light. That evidence resulted in breach matters being put before the Local Court and the applicant initially being convicted of matters. That result would have made these review proceedings otiose. However on appeal to the District Court the applicant received a finding of offence proven no conviction recorded on the breach. That process has taken 18 months to complete due to legal and Court delays occasioned by the impact of the Covid-19 Pandemic from early 2020. In the meantime the applicant's Category AB Firearms Licence (revoked on 26 April 2018) had subsequently expired.
On the applicant's application the Tribunal must still conduct an administrative review of the decision notwithstanding the expiration of the licence. For the reasons which follow, the Tribunal has determined that it is not in the public interest for the applicant to hold a Firearms Licence, and the decision of the respondent will therefore be affirmed.

[3]

Background

Mr Huggins has held a Category AB firearms licence since March 2010 and has been permitted to use firearms for the purposes of Target Shooting and Recreational Hunting / Vermin Control. Initially there were five firearms registered to Mr Huggins and he passed safe keeping inspections in 2013.
In April 2015 Mr Huggins reapplied for his licence and provided his business address as his residential address. In December 2015 Police were advised of a break and enter at Mr Huggins business address where his Gun Safe was stolen (along with the three nominated firearms and ammunition as contents).
In January 2016 Police located and recovered one of the firearms that had been stolen with the safe, (a Lakefield rifle). However the recovered firearm was fitted with a silencer, which is deemed a prohibited weapon. Section 7 of the Firearms Act 1996 provides that a person must not possess or use a pistol or prohibited firearm unless authorised to do so. In accordance with Sch 1 Item 10 of the Firearms Act a silencer renders a firearm a prohibited firearm. 10 Any firearm to which there is attached any article or device capable of muffling, reducing or stopping the noise created by firing the firearm. A silencer is also a prohibited weapon as set out at [6] (above). In May 2016 Mr Huggins made a written statement to Police where he appeared to identify the Lakefield rifle.
The provenance of this silencer and the applicant's purported admissions and denials concerning ownership were a central part of the contest between the parties in the proceedings.
Two additional items were also in contest at hearing. One concerned the conversations attributed to Mr Huggins concerning wishing to acquire a handgun and allowing a number of people to be aware that he was moving out of his industrial premises where the firearms were stored. The other issue concerned whether the firearm safe was secured contrary to the provisions of the legislation in that the safe was secured by way of coach bolts and was able to be separated from the structure that it was affixed to in the premises.
On 24 April 2018 Police issued a Notice of Revocation of Mr Huggins' Category AB Firearms Licence under s 24 (2) (d) of the Firearms Act. The Commissioner's delegate determined that it was not in the public interest for Mr Huggins to continue to hold a firearms licence.
On 22 May 2018 Mr Huggins applied for an Internal Review of that revocation decision. On 19 November 2018 the Commissioner advised Mr Huggins of the outcome of the Internal Review which affirmed the original decision to revoke the licence. On 3 January 2019 Mr Huggins applied to the Tribunal for administrative review of the revocation decision. The time to lodge the application was extended (by consent) under s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) at a Directions hearing on 12 February 2019.

[5]

The decision under review

The initial delegate made a finding that one of Mr Huggins registered firearms had a silencer attached and that he had acknowledged ownership of that silencer in a signed Police statement on 14 May 2016.
In addition a finding was made that Mr Huggins had acknowledged to Police in a signed statement that he had made numerous enquiries to source a handgun despite not being authorised to possess a handgun. In addition the senior delegate makes an inference based on the two findings, as follows: The fact that you held a silencer without the required authorisation suggests that had you acquired a handgun, you may not have made the required application to the NSW Firearms Registry to obtain a Probationary Pistol licence, which could authorise you to possess and use a handgun.
The delegate found therefore that it was not in the public interest for Mr Huggins to hold and firearms licence and the licence was revoked.
In the Internal Review the senior delegate made a number of findings of fact including that Mr Huggins had no criminal record, that he first received a Firearms Licence in March 2010 for target shooting and recreational hunting / vermin control, and this five firearms were initially registered as under the licence.
An inspection (safekeeping of firearms) inspection was scheduled for 30 October 2012 but was unable to proceed as Mr Huggins was no longer at the address and in the process of moving to Tamworth. On 2 February 2013 a successful inspection was carried out at premises at Crestwood (a suburb of Queanbeyan).
A fresh application for a licence (renewal) was lodged in April 2015 nominating the business address as the residential address. In December 2015 there was a break and enter at the premises whereby a dead bolted security door was breached and an angle grinder was used to remove the gun safe from its fixed position. Another safe containing cash was also removed by the thieves.
In January 2016 the Lakefield rifle with a silencer fitted and some ammunition was recovered from another person. Evidence later demonstrated that the firearm had been used to threaten someone. The senior delegate also made a finding that Police confirmed that Mr Huggins made a verbal admission to ownership of the silencer that was found attached to the Lakefield rifle.
The delegate at that time accepted that Mr Huggins was not charged with any offences. This finding related to both the safe storage issue concerning the break in and removal of the safe, as well as the alleged admission concerning the silencer. On the contentious issue about the silencer, the delegate placed weight on the lack of any admission as to its loss at the time of the break in.
The delegate focused further on the issue of the silencer and referred to the current (or subsequent denial) of ownership, which they claimed raised doubts as to Mr Huggins honesty. The delegate also held concerns about the 'reports' that Mr Huggins was seeking to source a handgun (without prior authorisation). Reliance was also placed on Mr Huggins nominating his business address as his residential address for the purpose of storage of his licenced firearms. Whilst the storage was approved by police the Delegate considered the availability of safe breaking tools nearby in the industrial business premises. The delegate considered this situation did not equate to Mr Huggins taking 'all reasonable precautions' as required by the Firearms Act to ensure security of the firearms.
In concluding the delegate relied upon a finding that Mr Huggins possessed the silencer and then denied such possession, as central to their determination that it was not in the public interest for Mr Huggins to have the licence. In reaching this conclusion the delegate relied on the reasoning of the Administrative Decisions Tribunal (ADT) Appeal Panel in the case of Leviny v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 34 at [30] - [32]. 30. Other Matters. Mr Leviny referred at hearing to the three inspections recorded in the Commissioner's material where visiting officers had found his weapons to be stored safely. Clearly he considers that taking his licence off him for one infraction is too severe. 31. It may well be that in some circumstances it would be sufficient to deal with a breach of safe storage requirements by penalty proceedings rather than by removal of a licence. 32. However, in our view it was open to the Commissioner and, equally, to the Tribunal to decide that the present circumstances did justify revocation of the licence in the public interest. In his submissions Mr Leviny sought to divorce the safe storage breach from the wider events of the evening of 7 June. In our view, the Tribunal did not go that far. While it reached no firm conclusion on whether or not he had the rifle with him at the time of his remarks, it can be inferred that his wife had acted in the way she had out of a well-founded concern for his welfare and that the doctor she had called, someone who knew both of them well, had no doubt as to the seriousness of her concern and the apparent gravity of the situation. The Delegate determined that the circumstances of the matter justified the revocation of the firearms licence in the public interest.

[8]

Developments since the conclusion of the hearing in April 2019

Whilst the matter was reserved in July 2019 the Commissioner sought to reopen the matter as 'significant new evidence had come to light'. In correspondence dated 23 July 2019 the Commissioner wrote to the Tribunal and Mr Huggins in the following terms: New and significant evidence has come to the attention of the Respondent that is relevant to issues in dispute between the parties including:

The Applicant's compliance with the requirements under the Firearms Act 1996, with respect to the possession of a prohibited firearm;
Contraventions of the Firearms Act 1996; and
Whether it is in the public interest for the Applicant to hold a firearms licence.

The new material concerned proceedings for breaches of the Firearms Act 1996 which Police brought against Mr Huggins. These matters were listed before the Local Court. However prior to those matters proceeding to hearing in early 2020 the COVID-19 pandemic intervened and prolonged the time that those matters were before the Local Court. The matter was delayed through 2020 until finally disposed of by that Court in late August 2020. At that time Mr Huggins plead guilty to one charge on the basis that the other charges were withdrawn by the prosecution.
On 27 August 2020 Mr Huggins was convicted on one offence of 'possess unauthorised firearm' pursuant to s 7A (1) of the Firearms Act 1996. Mr Huggins was fined $2,500.00 on conviction.
A subsequent severity appeal to the District Court on sentence was instituted by Mr Huggins. On 16 November 2020 the District Court at Goulburn upheld the severity appeal and dismissed the charge pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. The import of these matters is twofold. First, it has delayed the administrative review proceedings by approximately 20 months. Second, in overturning the conviction the administrative review proceedings remain relevant. If the conviction of 27 August 2020 was to stand Mr Huggins would automatically be barred from holding a licence for ten years.
Both parties had the opportunity to make submissions on the events post July 2019 in order to bring the matter to finality. These submissions closed on 12 February 2021.

[10]

Mr Huggins' Evidence

Mr Huggins written evidence consisted of two statements tendered by him (Exhibit's 'A-1' and 'A-2') as well as a copy of his Police Statements (Exhibits 'R-2', 'R-3' and 'R-4').
In oral evidence in chief he addressed the matters put against him in the decision. He said that the break and enter appeared to occur over four hours, which was evidence of how difficult it was for the thieves to remove the firearms safe. He said that at no prior time had police suggested that the storage measures were insufficient.
Mr Huggins was asked whether the silencer was attached to the gun in his safe, to which he answered 'no'. He said he had not seen the Lakefield rifle (with the silencer) only police photos. When asked whether the gun had a thread on the barrel Mr Huggins conformed that it did. He said that it was like that when he purchased it.
Mr Huggins was asked about his statement of 20 December 2015 (Exhibit 'R-2'). This initially arose in the context of some confusion of when he moved from the commercial premises. Mr Huggins said that 'R-2" was the more contemporaneous statement and that confirmed that he moved out of the premises sometime just prior to the break in.
In respect of police Exhibit 'R-3' Mr Huggins was questioned about paragraphs [14] and [15] of that statement. In the statement Mr Huggins states at [15] 15. I have been shown a photograph of a rifle with a timber stock and silencer affixed, a bolt and two magazines. That appears to be my .22 calibre Lakefield brand rifle, serial number 57201 that had also been in my firearms safe when it was stolen. …
Mr Huggins was asked what he was identifying when he made that statement as a result of being shown the photo. He said that he was identifying the gun itself. When asked whether any questions were asked when he was with the detective about the silencer, Mr Huggins replied 'no'. Mr Huggins was not aware of anything being said about the silencer and said that the detective may have taken his words the wrong way.
Mr Huggins was asked about a longer statement (Exhibit 'R-4') and the circumstances as to how it came about. Mr Huggins said that the detective contacted him about the matter where he was seeking access to a handgun, and whether he dictated it to the detective. Paragraph [5] of 'R-4' states: In regards to my seeking access to a hand gun I can only say that I always wanted a hand gun despite not being licensed to have possession of one. I had been contemplating getting one for about three years or probably longer. I have discussed it with a number of people, but the only person that has ever indicated that they could source one was my Cousin Jim Barclay. He said. "I could probably get you one of those." Jim would not have got the gun legitimately and I told him not to worry about it. I was after a .22 target gun or a 9mm. This conversation took place at Lorn Road about 2 or 3 months prior to the break in to my business. I have not spoken with Jim about whether he asked around for a handgun or not. I've not spoken to or seen Jim for about 6 or 7 months. I'm not sure if the conversation is related to the break in at my business or not.
Mr Huggins said that he did not dictate those words. When asked directly whether he had ever tried to source a handgun Mr Huggins said 'no'. He had some contact through an A.C.T firing range where he understood the rules were that after 12 months of use at the rage the firearm could be purchased and then after a period of time it can be stored in the owners safe. Mr Huggins adopted his statements (Exhibit's 'A-1' and 'A-2') as true and correct.
In cross examination Mr Huggins was questioned about which one of his five statements were more reliable. When asked about the various police inspections of his safekeeping measures Mr Huggins said he vaguely recalled the instances.
Mr Huggins were asked some questions about his knowledge of the safe storage requirements. He said that the coach bolts had a domed head which locked in and the nuts were only accessible from inside the safe. The ammunition was in a separate compartment (in the same safe) but accessible via a separate key. The bolt of the firing pins were similarly secured. When asked whether he notified police that his residential address had changed (in the period prior to the break in) Mr Huggins said that he did not believe that notification was necessary as the storage arrangements had not changed.
Mr Huggins was asked about the evidence at [14] of 'R-2' where his cousin Jim Barclay was at his premises and showed him a text about persons needing money. This was in response to questions about suspicious behaviour in the period leading up to the break in. Mr Huggins was asked about the statement (which is Exhibit 'R-3') and whether the detective showed him a photo of the Lakefield rifle (without the sight). Mr Huggins only recalled that he saw the photo before the statement was taken and could not recall any conversation prior to making the statement on that day with the detective.
Mr Huggins was taken to Exhibit 'R-6', a statement of Detective Senior Constable J Taylor. At [10] the following is recorded from May 2016: The Applicant positively confirmed that the rifle and the silencer attached to it appeared to be his firearm and that the firearm with the silencer affixed to it, had been in the firearms safe when it was stolen. We discussed the issue before I obtained a formal statement from him. During the discussion we used words to the following effect: I said: I'll show you a photo of your gun that we've recovered. Is that yours? He said: Yeah, it looks like it. I said: The silencer too? He said: Yeah, its mine. I said: You're a boofhead. He said: Am I going to get in trouble for having it? I said: I will talk to you later about that. Don't worry about it now.
Mr Huggins was asked whether the conversation recorded at [10] of 'R-6' occurred. He said no. Mr Huggins then said that he did not recall the conversation. Mr Huggins was then taken to the part of Exhibit 'R-6' where he is interviewed about the silencer possession some five months after the conversation recorded at [10]. Mr Huggins said that initially he did not know what the detective's contact in October 2016 was about. After a discussion he said that he wanted to obtain legal advice. Over the following month Mr Huggins sought copies of his earlier statements and advised the detective that he would decline to be interviewed about other matters relating to his firearms on the basis of legal advice.
Mr Huggins was taken to his own statement ('Exhibit 'A-2') and asked about the Lakefield rifle. He said that he had bought the rifle second hand and that the barrel was already threaded. He said that in his experience guns often come with a thread. He said that when he purchased the rifle he did not specify for it to come with a thread.
Further in cross-examination questions were raised about the evidence at [21] - [24] of 'R-6' about sourcing a handgun, and his later statement in 'A-2' at [11] - [13]. Mr Huggins was asked whether police had expressed a view prior to 27 May 2016 that the break in was a targeted offence. Mr Huggins answered in the negative and then said he could not recall.

[11]

Evidence of Detective Senior Constable Taylor

In evidence in chief the witness was asked whether the item attached to the (Lakefield) rifle was a silencer. The witness said it was.
The witness was asked whether he was a metallurgist (in response to the complaint about his evidence about the length of time that the silencer had been affixed to the rifle -as set out at [6] in Exhibit 'R-6' being his statement). The witness said that he was not a metallurgist but had 23 years policing experience including firearms investigations arising from the 1996 firearms amnesty both in NSW and other domestic jurisdictions.
The witness was asked whether the firearm in question had been modified. He said it was modified at some stage, by threading the end of the barrel. In respect of [10] of Exhibit 'R-6' (as set out above at [47]) the witness said that his recollection was that the exchange of information which is reproduced in his statement occurred prior to the formal interview. The witness agreed that he would have shown Mr Huggins the photo referred to in that exchange both prior to and during the interview.
The witness denied any suggestion that he would have advised Mr Huggins that the break in offence was 'targeted'. He said that he had heard that Mr Huggins cousin had blamed himself for the break in due to loose talk.
In cross-examination the witness was asked whether he typed the four statements ('R-2', 'R-3', 'R-4' and 'R-5') signed by Mr Huggins. The witness said he typed those statements. He was asked whether he agreed that the all-important conversation which is in 'R-6' at [10] did not appear in any of Mr Huggins police statements. This was agreed. However in respect of the 16 July 2016 statement ('R-4') the witness said that its purpose was to confirm for police the information previously provided to them by Jim Barclay.
The Solicitor for Mr Huggins suggested to the witness that he added words to [5] of 'R-4' where the purported conversation between Mr Barclay and Mr Huggins is recorded.
In respect of the recovered rifle with the silencer the witness did not accept that the gun and the silencer could have deteriorated at the same time as the silencer. The witness believed that over the course of the month that the rifle was missing, the silencer would have been fitted to the rifle the entire time.
The witness was asked about other concerns about the safe storage requirements as adopted by Mr Huggins. The witness believed that industrial areas are unsuited to safe storage. This was because there was often a lot of noise present which would shield suspicious activity and that these areas were often uninhabited.
The witness was asked about gun shops and it was pointed out that these were not located in residential areas. The witness agreed with the proposition but answered that they have much stricter security requirements and inspection regimes.
The witness was taken to annexure G of his Statement 'R-6', which set out the Firearms Registry safe storage requirements. The witness said that the current Regulation had come into force in 2017. The earlier regulation made no distinction between residential and non-residential premises concerning safe storage of firearms.
In re-examination the witness was asked about the four statements of Mr Huggins that he typed and whether the actual words were his words or Mr Huggins words. The witness said that he typed Mr Huggins words.
The witness was asked whether he recalled what he would have said to Mr Huggins at the completion of each statement. The witness could not recall specifically but said that he probably would have just said the usual words about whether he wanted to change anything, and whether it was correct.
The witness also said that there was evidence that the firearm had been discharged.

[12]

Further evidence

As set out above, the Commissioner sought to adduce further evidence after the conclusion of the hearing. That evidence related to an investigation into firearms matters whereby Mr Huggins was involved in some of the activities under investigation. A large amount of material was compiled by the Commission in respect of criminal charges concerning Mr Huggins and others. That material has been filed and served with the Tribunal in the last few months.
The Commissioner filed Statement in support of the proposed material on 17 December 2020. The Statement of Detective Senior Constable Dean James dated 16 December 2020 sets out in an administrative manner the nature of the charges preferred against Mr Huggins in respect of Firearms breaches which were laid after the conclusion of this hearing. Annexed to the statement is a USB key containing an electronic copy of the brief of evidence served on Mr Huggins in respect of the Local Court prosecution. The statement refers to the following charges: a. possess unauthorised prohibited firearms pursuant to section 7 (1) of the Firearms Act 1996. b. handle use firearm under the influence of alcohol/drug pursuant to section 64(1) of the Firearms Act 1996. c. possess unauthorised firearm pursuant to s7A (1) of the Firearms Act 1996.
These matters are not controversial between the parties in that the existence of the charges is known, as is the outcome as referred to at [30] - [32] above. In written submissions Mr Huggins Solicitor has asked that the Tribunal not to view the brief of evidence. Presumably the basis of that submission is that it would be unfair to Mr Huggins and that the evidence should not be admitted at this late stage. The Commissioner submitted that the Tribunal should view the material and have regard to it. Presumably this submission is made on the basis of the matters set out in the case of Drake and the approach to merits review by way of administrative review.
Whilst it is true that the material is before the Tribunal, it was not available at the time of the hearing. Due to the lengthy delay caused to these proceedings by the chain of events beginning with the above charges laid in the second half of 2019, their subsequent disposal in the Local Court over 12 months later due to COVID-19 impacts, and then the finalisation of a District Court appeal in mid-November 2020, there has been no submission to reconvene the hearing. This position is both understandable and in my view appropriate.
In my view the appropriate approach (having regard to the need to ensure fairness to both parties), would be to receive the material on a limited basis. Clearly the charge that proceeded (listed as 'c' at [65]) is before the Tribunal and can be fairly considered due to Mr Huggins plea of guilty before the Local Court. The other charges (by way of the fact that Police believed there was a prima facie case) are received with limited weight. In my view to consider them following a withdrawal with no admissions, as well as the lack of opportunity for Mr Huggins to test the evidence before the Tribunal would be manifestly unfair. They are therefore (charges 'a' and 'b' as set out at [65]) received on a limited basis in that they were preferred against Mr Huggins, and were withdrawn by the prosecution on the basis of the acceptance of a plea of guilty to the single charge.
I note that both parties have been given the opportunity to make submissions on these matters which I have referred to above and have had regard to. On that basis the material in respect of the charge that proceeded is received, and the other two matters are received with limited weight as set out above.

[13]

Mr Huggins' submissions

Mr Huggins prepared three sets of written submissions. The submissions dealt with the evidence prior to the hearing in April 2019, the evidence adduced at the hearing and the final set dealt with the developments in the Local and District Courts and responded to the Commissioner's submissions on those matters.
Mr Huggins submitted that when the first of his firearms was recovered following the break in, it was in the possession of a criminal. At that time the firearm had a silencer attached. Whilst the silencer is a prohibited weapon, other prohibited weapons were located amongst the criminal's possessions, such as an extendable baton and explosive power gel and fuses. Mr Huggins submitted that he made the 14 May 2016 statement (Exhibit 'R-3') at the request of police. Mr Huggins submitted that the contents of the statement only recognise ownership of the rifle, not the silencer. There is no positive admission merely a statement that the photo showed what 'appears to be'.
Mr Huggins submitted that he had never been charged with safe storage breaches. As referred to above Mr Huggins submitted that the Detective was not qualified to give his evidence about the length of time that the silencer had ben affixed to the rifle. Mr Huggins also submitted that he did not hold any view that the break in was targeted as a result of prior conversations around his possession of firearms. Mr Huggins says that this was the view of the detective, not him and that reference in Exhibit 'R- 4' should be read that way. Mr Huggins also submitted that the first reference to any conversation about sourcing a handgun arose in the context of the detective asking him about a possible list of people who knew firearms were located on the premises.
Mr Huggins made submissions that as his safe storage was approved under the former Firearms Regulations 2006 rather than the current Firearms Regulation 2017 no issue arises from the fact that his firearms (at the time of the break in) were stored in what had become 'non-residential' premises, due to Mr Huggins moving out prior to the break in. Mr Huggins also submitted that there was no evidence that what was referred to as a silencer was actually established to be a silencer.
Mr Huggins also made submissions about irregularities in the conduct of the Internal Review with allegations of collusion between the detective (as informant) and the reviewer. Further submissions addressed the position that no charges had arisen from the purported ownership of the silencer. The applicant submitted that his actions involved assisting police with their investigation.
In supplementary submissions after the hearing Mr Huggins submitted that no reliance could be placed on the detective's evidence at hearing. He did not substantiate his assertions by calling any witness to verify them or otherwise provide expert evidence on contentious matters such as the age and condition of the rifle and attached silencer.
Mr Huggins took issue with the inferences drawn by the Commissioner about the issue of acquiring a handgun. His submission was that at the time, a blemish free firearm user with no criminal record would not embark on such an enterprise in any unlawful manner.
In respect of the question of ownership of the silencer, Mr Huggins submitted that he was never asked at the time about the silencer, only the rifle. He confirmed that the photo depicted what appeared to be his rifle. Mr Huggins takes issue with the fact that because he did not disclaim ownership of the silencer he has somehow admitted ownership even though he submits that the silencer was never raised at that time. Submissions were made about the manner in which a police officer takes a statement from a witness and that the words as typed are crafted by the officer, not a transcript of the exact words, questions / answers, or conversations that take place.
Further submissions were made about how the safe storage requirements were not in breach of the regulations as they had been previously passed by police following an inspection.
Another submission concerned an apparent deficiency in Mr Huggins evidence about when the most recent safe storage inspection occurred and he was passed. A submission was made that the COPS Event set out at page 4 of the s 58 documents (exhibit 'R-1') is inconclusive and ambiguous and that Mr Huggins could not be criticised for a lack of knowledge that the matters recorded relate to a 2013 inspection.
In a third and final series of submissions received in February 2021 following the conclusion of the criminal proceedings, Mr Huggins submitted that the Commissioner had delayed the conclusion of his review application by the laying of charges. He submitted that they could forestall any reinstatement of his licence indefinitely by laying further charges and awaiting their progress through the system.
Mr Huggins submitted that the apparent decision by the Tribunal to allow the further evidence and as a result delay the proceedings should never have been allowed to occur. He submitted that it was an inappropriate exercise of the Tribunal's discretion. Due to the passage of time and the lapsing of the revoked licence, the Tribunal does not have power to restore the licence should it disagree with the decision under review.
Mr Huggins objected in his final submission to the inclusion of the brief of evidence pertaining to the three charges. He submitted that the evidence shows him attending at a rural property of a friend, and that on CCTV he is seen handling a firearm briefly, handing it to another fellow in the rear tray of a utility, and climbing into the rear tray of the utility. Mr Huggins submitted that there is no evidence that he did anything with the firearm beyond handle it. Mr Huggins further submitted that the informant was Detective Dean James and it was his challenged evidence that was the basis of the principal issue in the appeal, being relating to the credibility of that detective.
Further submissions were made about the correct approach to the evidence including the evidence which might have arisen from a full prosecution. Mr Huggins took issue with the Commissioner's submissions that the Tribunal could speculate on the untested evidence, and how such an approach would be unfair. A further submission was made about the s 10 District Court finding whereby the conviction was annulled and penalty removed because in Mr Huggins' submission the Court found the matter trivial.

[14]

Commissioner's submissions

The Commissioner also filed three sets of written submissions. The first submissions dealt with the evidence prior to the hearing and developed the position arising from the Internal Review. The submission set out the relevant statutory provisions arising from the Firearms Act 1996 and Regulations concerning safekeeping, prohibited weapons and the reported attempts to possess a firearm (handgun) without authority to do so.
The Commissioner submitted that the decision was made to revoke Mr Huggins firearms authority on the basis that it was not in the public interest for him to hold that authority. As the term is not defined in the legislation the Commissioner submitted that the underlying principles of the objects of the Firearms Act applied as per section 3. The Commissioner submitted that because of the drafting provisions the regime was one which was emphatically concerned with protecting the public, and making decisions which are consistent with a need to reduce any risks to a minimum citing Petas v Commissioner of Police, NSW Police [2013] NSWADT 137. At [36] of Petas the ADT observed: 36. One aspect of the circumstances of 22 August 2010 is that Mr Petas' performance as the Club's duty officer contributed to - but was not the only cause of - the tragic events that unfolded. It should not be forgotten that another significant contributor was the fact that Ms Fernando was a thief who had previously shown herself to be a liar. It would be easy to demonise Mr Petas, and to punish him further for breaching s 65 of the Act by selling ammunition to an unlicensed person. But the licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
In respect of the reference to the objects of the governing legislation. Section 3 of the Firearms Act 1996 provides: 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
The Commissioner submitted that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.
Further submissions were made in respect of the legal basis for the revocation that it was not in the public interest for Mr Huggins to hold the licence. The Commissioner submitted that the evidence indicates that Mr Huggins admitted ownership of the silencer.
In respect of the safe keeping issue, the Commissioner maintained their position that this was a relevant matter in the revocation. At [61] of their initial submissions the Commissioner stated: The Tribunal has also found that, even if a safekeeping breach was an isolated incident, and previous safekeeping inspections have been successful, it is open to the Commissioner to decide that certain circumstances justify the revocation of a licence in the public interest. Citing the case of Leviny v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 34 at [30]-[32]. 30. Other Matters. Mr Leviny referred at hearing to the three inspections recorded in the Commissioner's material where visiting officers had found his weapons to be stored safely. Clearly he considers that taking his licence off him for one infraction is too severe. 31. It may well be that in some circumstances it would be sufficient to deal with a breach of safe storage requirements by penalty proceedings rather than by removal of a licence. 32. However, in our view it was open to the Commissioner and, equally, to the Tribunal to decide that the present circumstances did justify revocation of the licence in the public interest. In his submissions Mr Leviny sought to divorce the safe storage breach from the wider events of the evening of 7 June. In our view, the Tribunal did not go that far. While it reached no firm conclusion on whether or not he had the rifle with him at the time of his remarks, it can be inferred that his wife had acted in the way she had out of a well-founded concern for his welfare and that the doctor she had called, someone who knew both of them well, had no doubt as to the seriousness of her concern and the apparent gravity of the situation.
In further submissions post hearing the Commissioner addressed Mr Huggins complaints about the standard of the police evidence and submitted that the rules of evidence do not apply to proceedings in this Division of the Tribunal. A submission was made to the effect that the Tribunal only needs to be satisfied to the civil standard (or balance of probabilities) not the criminal standard.
The Commissioner submitted that Detective Taylor's evidence should be preferred to that of Mr Huggins in respect of ownership of the silencer. There was a submission that questions were not explored by the detective about the silencer as at that stage the investigation concerned a break and enter where Mr Huggins was the victim.
The Commissioner submitted that Mr Huggins evidence both in his written statements and at hearing was at times inconsistent. During cross examination Mr Huggins conceded that not being able to recall was different to a matter (a conversation) not occurring. The Commissioner submitted that because the offender (who was in possession of the stolen/prohibited items when recovered) was charged and convicted of possession of a prohibited weapon and prohibited firearm, this establishes that the item affixed was a silencer.
The Commissioner also made submissions about the evidence concerning the safe storage requirements and submitted that the detective's concerns related solely to the manner in which the safe was affixed to the floor, and that tools and equipment were located nearby. The earlier comments about industrial premises being 'unsuited' irrespective of which regulation provisions were in force was maintained.
The Commissioner was critical of gaps in Mr Huggins safe storage requirement knowledge when cross examined about this at hearing.
The Commissioner also held concerns about Mr Huggins credibility and submitted that he had not been frank with the Commissioner or the Tribunal. The Commissioner submitted that Mr Huggins had conflated his rights in respect of criminal matters, and those pertaining to administrative matters relating to assisting police with an investigation. His refusal to be further interviewed or make a statement was in the context of an 'administrative decision' concerning whether he should continue to hold a firearms licence.
In a final submission received in December 2020 the Commissioner spoke to the matters arising out of the criminal proceedings. I note that Mr Huggins took great exception to many of the matters raised at all of pages two and three and the first half of page four of those submissions. The basis being that they were prejudicial and unable to be tested within the constraints of finalised criminal proceedings and a concluded civil proceeding before the Tribunal. I have already adjudicated on the weight given to those matters in these reasons
Separate to those matters reference was made to the case of Lynch v the Commissioner of Police (GD) [2006] NSWADTAP 43 in respect of how the Tribunal might approach and administrative review following a court outcome. At [47] of Lynch the Appeal Panel of the ADT observed: 47 In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal can not take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.
The Commissioner submitted that the Tribunal should take those matters into account. At [25] of their final submissions the Commissioner submitted that: 25. The Tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed. Joseph v Commissioner of Police New South Wales Police Force [2017] NSWCA 31, [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, [30].

[15]

Consideration

In my view the evidence about the safe storage requirements does not establish any breach of the regulations to a sufficient standard to give rise to whether it is in the public interest for Mr Huggins to continue to hold a firearms licence. Irrespective of the fact that no breaches were proceeded with, the evidence of the Commissioner at best is that the detective (understandably) held concerns about industrial premises being unsuited to firearms storage.
Many residential premises, especially in rural and remote areas are often unoccupied for long periods of the day, as well as often unattended for days at a time when occupiers are away. It is commonly accepted that many rural properties are approved storage addresses for firearms, as persons on the land are often registered firearms users. The detective's concerns about industrial noise masking illegal activity whilst noted, is no different to illegal activity not being detected on rural properties because of their remoteness. The Commissioner has subsequently attempted to address the concerns about private firearms being stored 'off residence' by working with the Minister to amend the regulations in 2017.
The other concern from my assessment of the evidence related to the bolts not being of the specified standard referred to by the Firearms Registry. I place limited weight on this issue because in the unchallenged evidence of Mr Huggins, that the bolts could only be undone by having first accessed the safe, where the nuts were located. The fact that only after some hours the thieves were able to remove the safe by ripping up the floor does not in my view establish that the measures taken by Mr Huggins were not reasonable. The obligation is to take all reasonable precautions. I believe that the precautions were reasonable in the circumstances. The safe storage measures are designed to prevent unauthorised access by way of deterrent.
Securing items in the safe is the first step to deterrence. Separately securing ammunition and firing bolts adds to the deterrence in preventing unauthorised use of the firearm. Securing the premises and finally securing the storage receptacle (safe, cabinet etc), are the final physical steps. Having examined the photographs of the crime scene I believe that Mr Huggins took all reasonable steps. No storage arrangement is infallible, and 100% guaranteed to prevent access in all circumstances.
Similarly I place minimal weight on the evidence that Mr Huggins was wishing to secure a hand gun. There was no evidence that he ever intended to follow through with his ambition and no evidence that it this was a serious endeavour then he would not proceed down lawful orthodox channels by obtaining a permit and pistol club membership.
In my view the evidence on this issue does not establish a breach of section 51CA of the Firearms Act relating to attempts. 51CA Attempts Any person who attempts to commit an offence under another provision of this Act is guilty of an offence under that other provision and is liable, on conviction, to the same penalty applicable to an offence under that other provision.
A discussion with no positive request does not amount to an attempt. Mr Huggins evidence in Exhibit 'R-4' does not equate to an attempt. 5... the only person who has ever indicated that they could secure one was my cousin Jim Barclay. He said, "I could get you one of those". Jim would not have got the gun legitimately and I told him not to worry about it.
There is no evidence that Mr Huggins ever asked Mr Barclay to secure him a handgun, merely that he expressed a long term desire to one day have one.
However on the issue of possession of the silencer the evidence is less straight forward. As there were conflicting submissions from both parties the evidence given at the hearing is of significance in testing the matter. Under cross examination Mr Huggins evidence about the conversation recorded at [10 ] of Exhibit 'R-6', his evidence was initially that the conversation did not take place. On this crucial point it seemed to the Tribunal that Mr Huggins evidence changed as the cross examination continued.
In evidence in chief Mr Huggins was emphatic that the conversation (as recorded by the witness in their statement) did not occur. At the conclusion of cross examination the position had changed to Mr Huggins not being able to recall whether the conversation in those terms took place.
I note that where the references to the silencer ownership or possessions arise in Mr Huggins own statement, (at [15] Exhibit 'R-3'), he signs that statement. I also note that the statement was made on 14 May 2016 six months after the incident, whereas Mr Huggins statements prepared for these proceedings (Exhibits 'A-1' and 'A-2') were made 4 March 2019 and 5 April 2019 for these proceedings almost three years after the May 2016 statement and well over three years from the initial events.
I also note that the conversation recorded in Exhibit 'R-6' where the cross examination is discussed at [107] and [108] above relates to the meeting which resulted in the statement which is Exhibit 'R-3', and signed by Mr Huggins. Whilst 'R-3' does not explicitly state that Mr Huggins admitted ownership of the silencer, he identified the firearm (with the silencer attached) and claimed ownership. On balance when his evidence under cross examination is weighed up, the previously unchallenged reference at [15] of 'R-3' which he signed, it seems more likely than not that the silencer was in Mr Huggins possession at the time of the break and enter.

[21]

(1) Breach of Firearms Act

The evidence demonstrates that the applicant had possession of a firearm when he was not authorised to do so. The Local Court made a finding of 'offence proven' on the basis of a guilty plea and proceeded to a conviction.
On appeal to the District Court the conviction and penalty were set aside and an order was made under s 10 of the Crimes (Sentencing Procedure Act) 1999. The section provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied - (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction - (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. Note - Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1) (b) in respect of the offence and a conditional release order made pursuant to that paragraph. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. (Emphasis added)
Whilst Mr Huggins Solicitor made a submission that the District Court dealt with the matter under s 10 (1) (a) by applying s 10 (3) (b), no material has been provided to expose the Court's reasoning further. However I noter the matters listed under s 10 (3). I understand that Mr Huggins had different representation in the criminal appeal. Those matters do not count against Mr Huggins.
In the absence of a conviction, there is no mandatory refusal by the Commissioner in respect of Mr Huggins fitness to hold a firearms licence. However the provisions of section 10 require that the Court make or maintain an earlier finding on the available evidence that the offence is proven. In this instance the Court had the benefit of Mr Huggins admission to the offence by his plea of guilty. There is no evidence that the plea was unsound and there is evidence that he entered into an arrangement with the prosecution to plead on the basis that the two related charges would be withdrawn.
Again, in the absence of knowing what material was eventually before the Courts it is difficult to be certain whether any facts were handed up on appeal, or whether the prosecution took any active part in the appeal.
The Tribunal has the benefit of the material before it in respect of the revocation, and the material (from the charges and the Facts) concerning the admitted offence. The only other material the Tribunal has had regard to is the nature of the other two charges as listed in the statement of Senior Constable James dated 16 December 2020. I have not examined the brief of evidence or the facts in those matters. I note that Mr Huggins solicitor requested that if possible I refrain from examining that material.
As set out above I believe that notwithstanding the somewhat open nature of administrative review, the Tribunal's primary obligation remains to be fair to all parties and witnesses. The Tribunal is also required to act with regard to the guiding principle as set out in s 36 of the NCAT Act. With unforeseen interventions it has been difficult to resolve this dispute in a just, quick and cheap manner whilst ensuring fairness. Irrespective of whether the Commissioner sought to agitate the withdrawn matters (as per their final submissions), I have determined that such a process is inherently unfair to Mr Huggins in the constraints of these proceedings.
I have already found the other two charges have very limited weight. However in my view (irrespective of the outcome of the appeal), in the proceedings before me the matter related to the guilty plea must be taken into account.
It is clear that on the elements of an offence for the breach of s 7A (1) of the Firearms Act, Mr Huggins has engaged in conduct contrary to that Act.
The section provides: 7A Offence of unauthorised possession or use of firearms generally (1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit. Maximum penalty - imprisonment for 5 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person - (a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or (b) contravenes any condition of the licence.
I note that a section 7A matter is an indictable offence which may be dealt with summarily. Because of the available penalty it is deemed to be a serious offence.

[22]

(3) Findings on Public Interest

When looking at the issue of public interest the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 observed: 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. 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 this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
The applicant has no history of violence. However I interpret aspects of the matters referred to in Toleafoa to mean that notwithstanding the various positive aspects and elements of the applicants character, (his previous crime free period), the public would be entitled to take into account the finding on the applicant's possession of the silencer, and the finding of offence proven on unauthorised possession of a firearm by the Court.
In my view the public would be quite concerned that someone with that history would be entitled to continue to access and use firearms, notwithstanding the absence of any significant adverse matters in the years prior.
In addition the case law indicates that the individual's interests would always be subordinate to the public interest in the issuing of a licence. The case of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 is relevant on this issue. At paragraph 681 of the Report: The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.
In Toleafoa at paragraph [25], the Appeal Panel said that the public interest: "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
In addition I note that the body of case law indicates that the discretion is to be applied for the public benefit rather than the individual benefit.
In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
In such circumstances I believe that on the available evidence, Mr Huggins desire to hold a firearms licence would be contrary to the public interest.
I therefore find based on the evidence set out above, that it is not in the public interest for Mr Huggins to have authorised access to firearms.

Huggins v Commissioner of Police

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Cases Cited (4)

Cited By (1)