King v Commissioner of Police, NSW Police Force

The application for review

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9(1).
2. Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions, including a decision to revoke a firearms licence.
3. In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review (see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]). In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
4. Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW), 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. The standard of proof that applies is the civil standard, that is, on the balance of probabilities.

Evidence before the Tribunal

1. Mr King relies upon a statement made by him on 14 June 2022. The Commissioner relied on the following material:

• documents lodged pursuant s 58 of the ADR Act;
• an affidavit of Senior Constable Troy Thornton dated 1 July 2022 (including video of body warn camera footage of 24 December 2020);
• COPS Events dated 18 and 19 May 2020.

1. Mr King gave oral evidence at the hearing, as did Senior Constable Thornton.

Factual background

1. Mr King was issued with a category AB firearms licence in 2014 and is a recreational shooter. He has never been charged with any firearms offences and inspections of his firearms safe storage by police in 2014 and 2017 were found to be satisfactory. At the time he was served with the refusal and revocation letters on 24 December 2020, Mr King had 25 registered firearms, 24 of which were stored at Bankstown Gun Shop. One firearm, a Marlin rifle, was stored at Mr King's home.
2. Senior Constable Thornton states that in December 2020 the Firearms Registry requested licensing police from Mount Druitt Police Area Command to serve notices upon Mr King revoking his category AB licence and refusing his category H licence application. There was also a notice of revocation of a permit to acquire, but that is not relevant for present purposes.
3. Senior Constable Thornton attended Mr King's home at about 10:21am on 24 December 2020 with another officer. No-one was home and they then went to another address but were informed by the people present there that Mr King did not reside there. At about 10:44am, Senior Constable called Mr King who told him he wasn't home but could be there shortly. Senior Constable Thornton states that he arrived back at Mr King's house at about 10:57am and Mr King was waiting at the front door. The following events were recorded on body worn video by both police officers.
4. Mr King was served with the notices and Senior Constable Thornton advised that he and the other officer would need to seize any firearms in Mr King's possession. Senior Constable Thornton had confirmed earlier that morning that 24 guns were stored at Bankstown Gun Club. Mr King then retrieved the Marlin rifle from a firearm safe.
5. Senior Constable Thornton asked Mr King if he had any ammunition stored at the premises. Mr King replied that all ammunition was at the Bankstown Gun Shop. Senior Constable Thornton then asked to check the safe. On doing so, he located two boxes each of which held 100 rounds of .22 calibre ammunition. The ammunition was not immediately visible and other items were stored in the safe. When questioned about the ammunition, Mr King at first said, "oh shit, okay .22's". When asked the reason the ammunition was stored in the same location as his firearm, Mr King responded: "Uh, no not really. I sort of knew you were coming, getting everything ready but I'd actually forgotten about those."
6. In a further conversation, Mr King told Senior Constable Thornton that the ammunition had been stored in the storage compartment at the top of the safe and that he had taken it out and put it in the main compartment 15 to 20 minutes previously because he assumed the police were coming to seize the firearm and ammunition. Senior Constable Thornton states that, while this may have been a plausible explanation, it was contrary to Mr King's initial reaction. He formed the opinion that the ammunition had been in the safe for some time and that Mr King had forgotten about it.
7. Senior Constable Thornton states that, rather than issuing an infringement notice or giving Mr King a warning, he charged Mr King with an offence under the Firearms Act as storing a firearm and ammunition together is at the higher end of breaches of safe storage requirements. Furthermore, he was concerned that Mr King was not being candid about his explanation for the ammunition being stored with the firearm.
8. Mr King states that on 24 December 2020 he was at work in Castle Hill when at about 10:20am he saw on his home security camera that two police officers arrived at his door holding paperwork. He said he had been monitoring the Firearms Registry website as he had been waiting on a reply about his category H licence application. The website noted that his licence was not valid and he therefore suspected that the police were at his home regarding that issue.
9. Mr King states that he telephoned Mount Druitt Police Station and spoke to Senior Constable Thornton who confirmed that it was about his firearms licence. Senior Constable Thornton did not say he was there to collect Mr King's firearm but did say he had advised Bankstown Gun Shop not to release other firearms that were stored there. Senior Constable Thornton states he has not been able to locate any record of Mr King telephoning the police station.
10. Mr King states that he left work shortly after 10:20am and arrived home at about 10:45am. He got the Marlin rifle ready for collection and put the rifle and the .22 ammunition together in the safe. Mr King states that the police took the rife and ammunition as well as ammunition, reloading primers and air rifle pellets which were in a locked cupboard next to the safe. He states that he has always had two separate locations for ammunition. Rimfire and centerfire rounds have always been locked inside the safe in a separate locked part along with any powder. Propellant canisters, air rifle pellets and primers were kept in the locked cupboard next to the safe.
11. Mr King states that the firearm and ammunition were locked within the safe and no person could gain entry other than him. He said he thought that he was being helpful in putting as much together in one spot, as he believed the police were coming to seize his firearm. He accepts that he should not have placed the ammunition in the same part of the safe as the firearm and states that for this reason he pleaded guilty to the charge at court. He states that the court accepted his explanation and did not record a conviction against him.
12. When questioned at the hearing about the responses he had given to Senior Constable Thornton's questions, Mr King said that initially the police were not concerned about any ammunition. He said he placed the rifle on a table when asked for it and the police did not ask any questions about the ammunition. When asked why he had initially said there was no ammunition and then after the police located the .22 rounds said he had forgotten they were there, Mr King said he had not forgotten about the ammunition and that it was a very stressful experience. He said he was still trying to comprehend that the police had taken his licence away. Furthermore, it was Christmas Eve and a frantic time.
13. Both Mr King and Senior Constable Thornton stated that the Marlin rifle was not capable of firing .22 rounds. Senior Constable Thornton also agreed with Mr King that his firearms safe exceeded the requirements necessary for safe storage. Senior Constable Thornton said, however, that while he could not say that the Marlin rifle could be modified to fire .22 rounds, he said that, as a general proposition, firearms are modified to fire .22 ammunition.
14. Mr King states that he has learned a valuable and costly lesson from this experience and that he would ensure at all times he was fully compliant with his obligations if he were granted a firearms licence again.

The relevant law

1. Two of the underlying principles of the Firearms Act are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
2. Additionally, the objects of the Firearms Act include:

• to provide strict requirements that must be satisfied in relation to licensing of firearms, and the acquisition and supply of firearms, and
• to ensure that firearms are stored and conveyed in a safe and secure manner.

1. The Commissioner is given a broad power to refuse or to revoke licences, including if the licensee is no longer a fit and proper person to hold a licence and if it is not in the public interest for the person to hold the licence. The Tribunal, in determining applications such as this matter, is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].
2. It has been said that in considering matters under the Firearms Act, public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

Fit and proper

1. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184.
2. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
3. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; [1990] HCA 33, Toohey and Gaudron JJ said: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
4. Their Honours went on to say at 388: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
5. Consideration of whether a person is fit and proper can involve an assessment of their honesty: Hughes & Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 at 156-157; [1955] HCA 28. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76, Walters J said: "… in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails…."
6. In the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an applicant "is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace": Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45].

The public interest

1. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
2. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33], the Appeal Panel said 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."
3. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23], Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
4. Importantly, s 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [27]-[28], Deputy President Hennessy said that in terms of public safety: "… The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
5. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206 at [130]-[134].
6. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]-[66]; Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Consideration

1. What is at issue in these proceedings is whether Mr King is a fit and proper person to hold a firearms licence and whether it is in the public interest for him to do so. The Commissioner submits, and I agree, that failure to safely store firearms is highly relevant to the public interest and to fitness and propriety. Such a failure can have tragic consequences.
2. Section 39(1) of the Firearms Act provides that: 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure - (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm.
3. Section 40 of the Firearms Act sets out the requirements for safe storage of category AB firearms, including that any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm. It is an offence to breach s 40, punishable by a fine of 20 penalty units, imprisonment for 12 months or both.
4. The Commissioner referred to the decision of Busuttil v Commissioner of Police [2013] NSWADT 305 at [55]-[56], where the Tribunal stated that the obligation on a licensee to take all reasonable precautions to meet safe keeping requirements is a heavy onus and that contravention of the requirements is a fundamental breach of the Firearms Act. Safe storage of firearms is part of the strict controls in relation to the possession and use of firearms designed to protect the public.
5. There is no dispute that Mr King breached safe storage requirements by storing ammunition and a firearm together. Mr King insists that he was trying to help police by having the firearm and ammunition ready for the police to seize. The Commissioner casts doubt on this explanation for a number of reasons:

• that Mr King did not know that his licence had been revoked or that police were coming to seize his firearm and ammunition;
• that there was insufficient time for Mr King to leave work, drive home, open his safe and place items together in it before locking it again and meeting police at the front door;
• the inconsistencies between his statements that no ammunition was stored at the premises, that he had forgotten about it, and that he had deliberately placed the ammunition with the rifle shortly before the officers arrived;
• the body worn video shows that he initially expressed surprise when Senior Constable Thornton located the .22 ammunition in the safe; and
• that the ammunition was not immediately visible when opening the safe and Mr King did not give the ammunition to police with the rifle when his stated reason for placing the ammunition with the rifle was so he could give both to police.

1. The Commissioner submits that either Mr King forgot about the ammunition in the safe or that he deliberately placed it there and then lied to police. The Commissioner states that it is more concerning that he may have deliberately breached the safe storage requirements and then lied to police by stating there was no ammunition. The Commissioner also submits that, if Mr King's statement that he deliberately placed the ammunition there so it could be given to police is untruthful, it is of particular concern that he has persisted with an untruthful account before the Tribunal. For his part, Mr King states he had not forgotten about the ammunition but in the stressful circumstances he gave the answers he did.
2. I accept that Mr King had some understanding that the police were coming to his house in relation to his firearms licence. He was aware from the website that his licence was not valid and that police had contacted Bankstown Gun Shop about not releasing his stored firearms to him. In relation to who contacted who, I consider it more likely that Senior Constable Thornton phoned Mr King asking his whereabouts and that Mr King's recollection that he telephoned the Mount Druitt Police Station is incorrect. Mr King clearly arrived at his home prior to the police driving back there and it is therefore possible that he could have opened the safe and placed items together in it.
3. I agree with the Commissioner's submissions at the hearing that it is difficult to determine whether Mr King forgot the .22 ammunition was in the main compartment of the safe or that he deliberately placed it there for the police to collect. Each account is in fact plausible and I accept that he was stressed by the occasion. I also agree with the Commissioner that, either way, it is a matter of concern and resulted in a breach of his responsibilities under the Firearms Act.
4. In any event, it is the Tribunal's role is to make the correct and preferable decision based on all the material before it. In this case, that material relates to all available information about Mr King that is relevant to the issues of whether he is a fit and proper person to hold a licence and whether it is in the public interest that he does so. In Tannous v Commissioner of Police [2011] NSWADT 116, the Tribunal noted that the question is whether viewing the applicant's conduct as a whole, the Tribunal is concerned that the applicant's breaches of the law indicate a lack of regard for the law and public safety. The Tribunal went on to state at [33] that if it was so satisfied of such a lack of regard for the law and public safety, then it would conclude that it was not in the public interest for the applicant to hold a firearms licence. I would also add that the task of the Tribunal is a forward looking one in determining whether there is, in all the circumstances, a real and appreciable risk to the public if Mr King was again to have a firearms licence.
5. Mr King does not have a history of offending or of any adverse traffic history. The Commissioner has provided evidence in relation to historical matters in 2002 and 2020 concerning Mr King's then domestic circumstances but made no submissions with respect to them. The 2002 incident did result in an Apprehended Violence Order, but charges were dismissed. The 2020 complaints about him were dismissed by police at the time. In addition, there is no current evidence before me which would indicate that Mr King's domestic circumstances would lead to offending or affect his ability to fulfil his responsibilities if issued with a further licence.

Orders 1. The decision to revoke the Applicant's category AB firearms licence is set aside. 2. The decision to refuse the Applicant's application for a category H firearms licence is set aside. 3. The decision is made that the Applicant's application for a category H firearms licence is granted.

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: 23 March 2023