Leviny v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2015-09-14

Reasons for decision

This is an application by Mr Geoffrey Leviny to seek a review of the decision by the Commissioner of Police to refuse him a firearms licence. The delegate of the Commissioner considered that issue of the licence would be contrary to the public interest. This decision was affirmed following an internal review of the matter.

Background

Mr Leviny applied for a Category A firearms licence on 29 December 2014. The application was refused on 28 March 2015. Mr Leviny applied for internal review of that decision on 4 April 2015. The decision to refuse the licence was affirmed by the Respondent on internal review on 26 May 2015. The application for review was lodged in the NSW Civil and Administrative Tribunal ('the Tribunal') on 26 June 2015.
Mr Leviny had previously held a firearms licence since 1998, but it had been revoked on 19 June 2012. That revocation had come about following an incident on 7 June 2012. That revocation was the subject of an appeal to the Administrative Decisions Tribunal (ADT), the predecessor of this Tribunal: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADT 62. Following a hearing on 15 March 2013 before Montgomery JM, that Tribunal affirmed the revocation in its decision of 20 March 2013. On appeal, the appeal panel upheld that decision: Leviny v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 34 on 23 July 2013.

The Hearing

The hearing was held in Ballina on 14 September 2015. The Tribunal has jurisdiction to review the decision pursuant to section 75(1) (c) of the Firearms Act 1996 and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW). In accordance with section 63 of the Administrative Decisions Review Act 1997, the role of the Tribunal is to make the correct and preferable decision on the material before it.
The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
The standard of proof that applies in these proceedings is set out in section 140 of the Evidence Act 1995 as on the balance of probabilities. 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
There is, however, no burden or onus of proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10.

The issue for the Tribunal

In this case, the Tribunal must determine whether, on the evidence before it, Mr Leviny's firearms licence should be granted. In making its decision, the Tribunal must consider whether issue of the licence would be contrary to the public interest.

RELEVANT LAW

The underlying principles of the Firearms Act set out in section 3 are, relevantly, to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and 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.
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].
Subsection 11(7) of the Firearms Act provides: 11(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
The test in relation to 'public interest' set out in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 is whether: based on all the evidence, it would have confidence that (the applicant) 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.

Documents before the Tribunal

The Tribunal had before it:

Mr Leviny's application for review and annexures;
The Respondent's section 58 documents - which contained Mr Leviny's rejected application for a firearms licence of 19 December 2014;
Copies of letters from Mr Brendan Colson of August2 014 and June 2015;
Mr Leviny's written submissions to the Tribunal; and
The Respondent's written submissions.

Applicant's submissions

At the hearing Mr Leviny relied on the contents of his application for review which attached a letter from Mr Brendan Colson dated 14 June 2015. He did not file a new statement from himself. He spoke to his written submissions at the hearing. At times Mr Leviny gave evidence from the bar table. He was not cross examined.
Mr Leviny's grounds for appeal were set out in his application for review and a separate submission dated 21 June 2015. Mr Leviny's written submissions which accompanied his application for review are set out below. The reasons I am seeking a review of the decision are: I wish to have an "External Review by the Administrative Decisions Tribunal" on the grounds; The ground for refusal of the firearms licence application dated 28 March 2015 was the issue appealed in my internal review request dated April 4, 2015. The findings of this appeal 26 May 2015 did not address these appealed grounds; instead it changed the grounds thereby denying me the ability to appeal these new grounds, a summary of which is;- It relies on claimed lack of prior knowledge as relevant to knowledge possessed at the latter application. It claims "no persuasive evidence to suggest your opinion has since changed" which is contrary to the evidence. It claims a mindset that is contrary to the evidence. It draws on case law to demonstrate consequences in cases that are totally dissimilar as the facts and findings demonstrate. The attached documents included further written submissions and a letter dated 14/6/2015 from Mr Brendan Colson of Yamba Gun Club.
The Tribunal sets out below the contents of Mr Leviny's further written submissions in a document headed: Greater detail of the Applicant grounds for appeal of the Internal Review dated 26 May 2015. The ground for refusal of the firearms licence application dated 28 March 2015 was the issue appealed in the internal review request dated April 4, 2015. The findings of this appeal 26 May 2015 did not address these appealed grounds; instead it changed the grounds ( page 2 D REASONING PROCESS line 9 "I agree with the decision mode, although that decision has been made on varied grounds"'). This denied the applicant the opportunity to appeal these new grounds at the internal level. The Applicant now takes this opportunity to appeal these new grounds. The Internal Review- Statement of Reasons states on page 2 at 8th last line;-"By the way of background I place weight upon the following; • The Internal Review Statement of Reason dated 24 July 2012 (affirming the revocation of your firearms licence)/' That review relies solely on self-harm grounds which had been withdrawn, and makes no mention of Safe storage or lack of knowledge of this. This reintroduces the issue of self-harm, and confirms the need to determine that issue, as requested by the applicant, but repeatedly reproached for doing so. The findings of this appeal 26 May 2015 sites only sec 11(7) "(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest"' It applies this by claiming lack of knowledge of the safe storage and compliance with this. It claims confirmation of this by quoting comments from cases on or prior to 18 November 2014 which was prior to the current licence application of 19 December 2014 and cannot reflect knowledge after this. On page 4 line 19; "Based on the information before me and the arguments you made on 18 November 2014 at hearing, I have no persuasive evidence to suggest your opinion has since changed." This is inconsistent with the evidence;-
The application for class A firearms licence dated 19/12/2014 included a letter from Mr Brendon Colson, the President and Safety Officer of Yamba Clay Target Club, and quoted judgement of NCAT of 24 October at paragraph 22 & 23 in regards the letter from Brendon Colson "In our view these are fresh matters that the Commissioner, should have the opportunity to appraise in due course." This letter whilst undated was clearly recent to that hearing of 14 July 2014 and made in response to Paragraph 70;- "There needs to be some objective evidence. While the Tribunal cannot lay down a syllabus for such a program, one might think that proof of one or more sessions with a club instructor on the specific matter of storage could be relevant If the applicant were to reply in the new year with some objective evidence and was able to satisfy the Commissioner that he fully understands the obligation of strict compliance with the safe storage requirements, the discretion might be exercised in his favour." It fails to acknowledge the three past inspection records that were enclosed; COPS Event Numbers E 20516905, E 42496008 & E 171338195. All of which confirm that rifles were always found to be locked in the safe ("suitable lockable cubicale") and the ammunition separately stored. This is evidence of past compliance which in itself demonstrates knowledge of the safe storage requirements and compliance there with. Event E 20516905 also confirms the applicant's surrendering of the Springfield .22 and the Lithgow .303 as stated in the Application for class A firearms licence dated 19/12/2014. This further demonstrated a responsible behaviour and compliance with the Act.
It fails to recognize the significance of compliance and understanding of the applicant's responsibilities as shown in the statement included in the Application for class A firearms licence dated 19/12/2014 which included a quote from Internal Review-Statement of Reasons dated 24 July 2012 under D Reasons;- "I gave serious weight to your lengthy prior history with firearms since at least 1990. This significant period of authorization to possess and use firearms shows no previous concern, record of misconduct or concern regarding your access to firearms"' The issuer of the Notice of Suspension of Licence, Senior Constable Brice Jeffcoat who had been to the house on three occasions and aware of its security, stated in his Statement 24 September on page 4 - "discretion was exercised, and no criminal action regarding the safe storage breach has been taken against either Mr or Mrs Levin"' Sitting cases Rosenboom v Commissioner of Police [2006] NSWADT 10 and Dewar v Commissioner of Police [2003] NSWADT 115 serves to distinguish flagrant breaches of the firearms act from the applicant's case where guns were registered, unloaded and out of site for an hour in a secure house with only the wife present. By contrast the Rosenboom case involved leaving indefinitely unsecured and unregistered firearms with ammunition accessible in a populated house. The Dewar case involved a loaded rifle left observable and unsecured in a public street. Whilst all three include breeches of the Act, only the sited cases resulted in serious consequences, while in the applicant's case Professor G.D. Walker, Senior Member at par 50 of decision 24 July 2014 stated: "Mrs Leviny probably presents zero risk to public safety." And in par 69 Professor G.D. Walker says; "his contraventions lie at the lower end of the scale". Regardless, I wishes to state that I am now alarmed at the thought that any failure to comply with the safe custody provisions could result in such tragic consequences and fully appreciate the instruction of Mr Colson, and additionally I reaffirm my words from my Class A licence application of 29/12/2014; "If am granted a firearms licence I would never make such a mistake again as I value the use of my rifles too much. I have stated it was an error of judgement that I know to be wrong and am very sorry and will never allow to occur again" Please restore my firearms Licence so that I can resume my full farm activities.
Mr Leviny attached to his application for review a letter from Mr Brendan Colson dated 14 June 2015.The Tribunal reproduces below the letter from Mr Brendan Colson President, Safety Officer of Yamba Clay Target Club and club armourer. TO WHOM IT MAY CONCERN 14/6/2015 My name is Brendon Colson. I reside at [address], I am President and Safety Officer of Yamba Clay Target Club. I am also the club armourer. Mr Leviny has again contacted me and given me a copy of an Internal Review of Reasons dated 26 May 2015. He was concerned that the information I had provided in my letter concerning my instruction to him appeared to not be accepted. I wish to advise that, that letter I wrote regarding Mr Geoff Leviny, a copy of which is attached I had overlooked dating which I wrote on 9th August 2014. Having put my phone number on it I simply assumed that if there was any question arising I would receive a phone call. I apologize profusely for not dating my letter but stand by all the information in the letter as being true and correct As previously stated, Mr Geoff Leviny contacted me in August 2014 requesting refreshing and examining of all practical applications of the safe keeping of firearms because he had informed me that his licence had been refused at a recent appeal. He showed me the papers concerning the revocation of his existing licence dated 18 June 2012 and particularly the judgement of August 2014 from a hearing in Lismore which recommended that he get instruction on safe storage and confirmation that he accepts the importance of the Act and that he can and will comply. Apart from writing my undated letter referred to in the Internal Review, and giving instruction at my home and the gun club, I visited his farm and inspected his gun safe and his ammunition box. These complied with the Act and were consistent with three police inspection reports that he showed me. I am well experienced in all safety requirements and issues. I am certain that Mr Leviny is well aware and accepting of his one transgression. Mr Leviny knows and understands the safety requirements and will adhere to them, I see he has apologised to the Court for his error, and I am certain that he now has full appreciation of the safety laws required of him as a firearms licence holder in the future. Mr Leviny has been an extemporary law abiding citizen of good character as recognised by the court. I am confident he would not be a threat to Public Safety should he be granted an A Licence and have his firearms restored to him. Yours faithfully, Brendon Colson
The Tribunal also reproduces below the first letter provided by Mr Colson. The Tribunal understands that the first letter was written on 9th August 2014. It was provided to the NCAT Appeals panel at the hearing of Mr Leviny's Appeal which was finalised on 21st November 2014 - see Leviny v Commissioner of Police NSW Police Force [2014] NSWCATAP 90. It was also provided with Mr Leviny's application of 19th December 2014 to the Respondent. I am Brendon Colson, president and safety officer of Yamba clay Target Club. Mr Leviny contacted me requesting refreshing and examining on practical application of the safe keeping of firearms. He told me that he has been charged with noncompliance and his rifles were confiscated in the public safety. I have taken him to the gun club and gone over all the safety rules and how they are implemented. It was clear that he understood. I established that he is a past member of Euroa gun club and has had training from the army and civilian licencing when he gained his Firearms licence. At the club I demonstrated gun handling when shooting at a range and also simulated gun handling in a field situation (eg walking with a firearm, crossing a fence and other relevant items.). I have been to his house and inspected his firearms safe and gone over his security procedures. Mr Leviny produced a locked box which he had kept his ammunition. I did not see where he got it from and he said that was a security matter of his choosing and since this does not conflict with the act I was satisfied that he understands the requirement for ammunition to be in a locked box. We went over his use of his bedroom as a shooting hide, and I explained to him that as with weapons at the gun dub it is important that when guns are in use they should remain in sight of the owner, and if this is not practical they should be locked in the safe. I believe he understands this now and would in future conform to this. My confidence is backed by three past inspection reports he showed me and the knowledge that such inspections are ongoing state wide. Over the last few months I have spent considerable time with Mr Leviny and I believe he is to be of sound mind and of good character. I also believe that if his guns were granted to him, and he would be very grateful. In my opinion Mr Leviny is no threat to public safety. Brendon Colson

Mr Leviny's oral submissions

At hearing Mr Leviny told the Tribunal that his firearms had been confiscated on false grounds. He is of good character and holds responsible positions in the community. He is a primary producer - as distinct from a recreational shooter and a firearms licence is very essential to that. He had sought instruction from Brendon Colson as suggested by Judge O'Connor in the Appeals Panel hearing. He said that he had shown Mr Colson all of the papers from the previous hearings and that Mr Colson had been to his place.
In reference to the Respondent's written submissions he said that he had lodged appeals "because you only get 28 days to lodge an appeal and he should not be criticised for doing this." It was incorrect to say that he had done nothing about educating himself in relation to the Firearms Act. He has read all of the cases that Mr Mattson, (the Respondent's solicitor) had previously put before the Tribunal. He had been to see Mr Colson. He objected to the fact that his firearms had been confiscated on one ground and then the reasons for which his licence should not be returned to him had been changed in the course of the hearings.
He should not be criticised for not revealing where his ammunition is stored as someone could look it up on the web and come and take his ammunition. He said he now knows that what he did was wrong and he won't put them down again. He knows now that at all times he must have sight of his firearms. If he makes a telephone call he will cling onto his firearms.
He told the Tribunal that he was only away from his firearms in June 2012 for an hour. He knows it was a mistake and there must not be a temporary lapse of the storage requirements. Mr Colson had stressed this to him.
He said the matters referred to by the Respondent in their written submissions were matters that had occurred in the past - as was the evidence that he had given to the previous Tribunals and Appeal Panels. That was then and this is now. He is now 75 years old and he has been shooting since the age of 12. He has been in the army. He deplores people waving guns around. He had made an error of judgement. Now whenever he takes his firearms out of the safe he will maintain possession of them at all times. The events of June 2012 are now three years ago and in the intervening period he has spent time re-educating himself. He considers that after all of this he is the least likely person to contravene firearms storage requirements.
Mr Leviny told the Tribunal in relation to Mr Colson's two letters that after the Appeal Panel decision in November 2014, he had gone back to see Mr Colson again. He had gone to the gun club and seen what they did with their firearms in between firing them. He had further instruction from Mr Colson. Mr Colson had suggested that he could put a safe in the cupboard that he had previously used to store his firearms.
In response to the Respondent's submissions Mr Leviny denied that he had either abused process or that he was vexatious in bringing his further applications. He apologised to the Tribunal for returning to the past issues that had been dealt with by the Tribunal. However he was responding to the Respondent's submissions. He conceded that he gets "sucked in every time".

Oral submissions of the Respondent

At the hearing Mr Mattson spoke to the Respondent's written submissions. A summary of the Respondent's written submissions is also set out below.
In oral submissions Mr Mattson said that Mr Leviny had told Senior Member Walker in the July 2014 hearing that the police did not collect his ammunition. It was clear that the responsibility was upon Mr Leviny to surrender the ammunition to the police immediately. It was incorrect to consider the events of June 2012 as just one transgression. Not only had section 40 of the Firearms Act in relation to storage obligations been breached, but an unlicensed person (Mrs Leviny) had obtained access to the firearms and handled them. When Mr Leviny had seen the firearms were not where he had left them, he should have acted immediately but did nothing to ensure that he had complied with his obligations. He then left the property. It had been established in the hearing before Judicial Member Montgomery that Mr Leviny's practice of leaving the firearms out of storage around the house had been a long-standing practice. It had not just been one occasion.
In relation to Mr Colson's second report dated 14th of June 2015, the Respondent submitted that the substance of the second report was already in existence in Mr Colson's previous undated report.
Mr Leviny's declaration in his December 2014 application for a firearms licence that he now fully understood and would comply with firearms requirements was not credible. Before Senior Member Walker in July 2014 and later in the 2014 Appeals Panel, Mr Leviny had continued to express views which were not consistent with the requirements of the Firearms Act. This was despite the fact that by Mr Colson's account, Mr Leviny he had been consulting him for some months in order to obtain a better understanding of the requirements of the Firearms Act. Mr Colson's recent letter of 14 June 2015 does not give any evidence of any new training undertaken by Mr Leviny. Accordingly Mr Colson's letters do not meet the threshold of credible independent evidence that Mr Leviny had changed his views about the requirements of the Firearms Act. Mr Colson's views could not be relied upon as an indicator of Mr Leviny's future actions.
At hearing the Respondent submitted to the Tribunal that Mr Leviny's fresh application for a firearms licence and his application for review in the Tribunal constituted an abuse of process. He had consistently re-argued the same matters in the four previous hearings before the Tribunal and the Appeal Panel. This was arguably vexatious and an abuse of process.
The Respondent also stressed that the case law showed that there would need to be significantly different set of circumstances for the Tribunal to overturn the previous Tribunal decisions when dealing with the same issues. Effectively no new evidence had been put before the Tribunal.

Respondent's Submissions

The Respondent provided lengthy written submissions which are summarised below.
The Respondent refused to issue a firearms licence to the Applicant on the ground that it is not in the public interest that the Applicant hold a firearms licence: see s11(7) of the Firearms Act 1996 (Act). The Respondent was not satisfied that the Applicant had a proper and sufficient understanding of the importance of safe storage obligations and could comply with the safe storage requirements.
The Respondent referred to the history in June 2012 which led to the revocation of Mr Leviny's firearms licence. They involved Mr Leviny threatening suicide with his firearm followed by a contravention of storage requirements.
The Applicant challenged the Respondent's decision in 2012 to revoke his firearms licence in the Administrative Decisions Tribunal. After a hearing on 15 March 2013, the ADT affirmed the Respondent's revocation decision: Leviny v Commissioner of Police, NSW Police Force [2013] NSW ADT 62. The Tribunal had "serious concerns about the Applicant's appreciation of the importance of strict observance of his obligations as a firearms licensee" to comply with safe storage requirements. The ADT's decision was upheld on appeal to the Appeal Panel see: Leviny v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 347 (2012 Appeal Panel Proceedings).
Just ten days after the Appeal Panel's decision was handed down, the Applicant reapplied for a firearms licence without addressing any of the concerns raised by the Tribunal. The Respondent refused the Applicant a firearms licence for the same reasons, and this decision was affirmed on internal review. The Applicant again sought a review of the Respondent's decision in the Tribunal which affirmed the Respondent's decision to revoke Mr Leviny's firearms licence. See: Leviny v Commissioner of Police, NSW Police Force [2014] NSWCATAD 108. The Tribunal again expressed concerns about the Applicant's compliance with his obligations as a firearms licensee, finding that the Applicant's evidence concerning compliance with ammunition storage requirements was "less than entirely satisfactory" and that he interpreted his obligations in an "idiosyncratic way"
The Applicant appealed to the Appeal Panel but his appeal was dismissed on 21st November 2014: see Leviny v Commissioner of Police, NSW Police Force [2014] NSWCATAP 90.14 It was then, just over one month later after this Appeal Panel decision, that the Applicant made the application in December 2014 for a firearms licence that is subject of this review.

Respondent's submissions about the relevant law

The underlying principles of the Firearms Act stated in s3 (1) 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: Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2 at [31] and Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44].
Contraventions in respect of failing to meet the safe storage requirements as set out under Part 4 of the Firearms Act are fundamental in their nature in that they are contraventions which go to the crux of the principles and objectives of the Act: Cleofe v The Commissioner of Police [2001] NSWADT 2.
The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v The Commissioner of Police [2003] NSWADT 30. The public needs to be confident that those who are afforded the privilege of a firearms licence actually store their firearms in accordance with the legislative requirements: Morris v The Commissioner of Police [2002] NSWADT 223.
The Tribunal ought to affirm the Respondent's refusal decision. A decision to grant Mr Leviny a licence would, in the circumstances, be inconsistent with the previous decisions of the Tribunal and Appeal Panel.
The Applicant had again not filed any witness statements (or further materials) in support of his Application in accordance with the directions of the Tribunal.

The events in June 2012

The Respondent referred to the facts of June 2012 relating to Mr Leviny's threatened suicide and contravention of storage of requirements. The Respondent then referred to the evidence and cross examination of Mr Leviny in the subsequent 2012 proceedings which the Respondent submitted demonstrated Mr Leviny's lack of understanding of his obligations in relation to firearms storage.
The Respondent noted that there were several salient features in the decision of Judicial Member Montgomery in the 2012 proceedings before the Administrative Decisions Tribunal. One was the concern of the Tribunal about Mr Leviny's appreciation of the importance of strict observance of his obligations as firearms licensee. Further Mr Montgomery had recommended that Mr Leviny have time without a firearms licence to focus on the reason for the requirements and the need for strict compliance with them. Thirdly the Tribunal could not be satisfied that there was virtually no risk to the public from Mr Leviny having a firearms licence or indeed that the public would be comfortable with him having one. Given his contraventions in relation to storage, finally Mr Montgomery had suggested positive steps that Mr Leviny might take to re-educate himself concerning the legislative requirements and the importance attached to the storage requirements.
The Respondent then referred to the Appeal Panel proceedings in 2013. Again the Respondent quoted the evidence and the cross examination of Mr Leviny which demonstrated a lack of understanding of his obligations under the Firearms Act. The Respondent quoted comments made by Judge O'Connor in the Appeal Panel hearing transcript referring to Mr Leviny's comments in his evidence about storage as being "unhelpful" to his case and that "disrespect for the law" was being conveyed by Mr Leviny's evidence. The Appeal Panel dismissed Mr Leviny's appeal on 23 July 2013. The decision of the Appeal Panel discloses a remaining concern about the events of June 2012. The Appeals Panel was not satisfied about Mr Leviny's understanding of the safe storage obligations.
10 days after the Appeal Panel decision in July 2013 Mr Leviny lodged another application for a firearms licence. This was rejected by the Respondent leading to the review by the Tribunal before Professor Walker in July 2014. The Respondent refers to Mr Leviny's comments in the transcript during cross examination which continued to show a lack of understanding of the storage requirements when he was taken through the storage issues of June 2012. Further Mr Leviny's submissions in the July 2014 proceedings before Professor Walker also demonstrated that he continued to contest what the storage requirements under the Firearms Act meant in their application to his own circumstances.
Professor Walker had noted that Mr Leviny may have understood the legal requirements set out under the Act, but that he interpreted them in an idiosyncratic way. Professor Walker concluded that he could not exclude Mr Leviny exercising selective compliance with the requirements in the future. Professor Walker stated that Mr Leviny needed time out without a firearms licence to focus on the requirements in relation to storage and the need for strict compliance with them. He stated that Mr Leviny needed to provide objective evidence that Mr Leviny now fully accepts the obligation of strict compliance. Mr Leviny appealed Professor Walker's decision. The matter was considered by the Appeal Panel and its decision given in November 2014.
In Mr Leviny's evidence before the 2014 Appeal Panel at paragraph [134] of the transcript, Mr Leviny talks about the instruction that he had been receiving from Mr Colson. However Mr Leviny then interpolates into the legislative requirements that there is a "reasonable man" consideration. The transcript shows that during the hearing the Appeal Panel made the following comments to Mr Leviny:

Mr Leviny's evidence was not helping him as he had been told by the Appeal Panel and the previous 2012 proceedings and appeal.;
The Appeal Panel advised that he should try and modify his fixed views about the storage requirements;
a reasonable man concept was not part of the section 40 of the Firearms Act requirements in relation to storage.

The Respondent noted that the Appeal Panel's decision in November 2014 expressed that Mr Leviny had a continued lack of insight. He had continued to say things which indicated the law should not apply to him with equal rigour. At paragraph [29] of the Appeal Panel 2014 decision, the Appeal Panel had stated that Mr Leviny would need to produce independent credible reports and testimonials to assist any further application. The Respondent noted that Mr Leviny made a new application for a firearms licence just under six weeks later on 29 December 2014.
The Respondent noted that when considering the public interest, public safety is paramount. The Respondent canvassed the case law in relation to public interest and public safety and the role of compliance with storage requirements in these concepts.
In particular the Respondent referred to Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 at [19] as authority for the proposition that to set aside a revocation "decision based on failure to store firearms safely an applicant must show there are persuasive and relevant considerations which take their matter outside the ordinary case." Considering the Tribunal and Appeal Panel comments about Mr Leviny's attitudes in 2012 and 2014, Mr Leviny's case was not outside the ordinary case.
The Tribunal's decision in 2012 proceedings by Mr Montgomery had advised Mr Leviny to take time and re-educate himself about the requirements however Mr Leviny he had instead continued his appeals. He had not focused his mind even after he had received directives and advice from the Tribunal and the Appeal Panel.

Abuse of Process

The Respondent submitted at hearing that Mr Leviny's application before this Tribunal is an abuse of process. Mr Leviny was not put on notice prior to the hearing that this would be raised before the Tribunal. The issue was not raised in the Respondent's section 58 documents or its written submissions. Mr Leviny had no opportunity to seek advice about the issue. Accordingly, as a matter of procedural fairness, the Tribunal determined to make no finding on the issue of whether Mr Leviny's application constituted an abuse of process.

Findings of Fact

This Tribunal adopts the findings of fact made by the previous Tribunal and Appeal Panel in 2014.
The only new factual circumstances before this Tribunal are the fact of Mr Leviny's current application for a firearms licence made on 19 December 2014 and the 2 letters from Mr Colson of August 2014 and June 2015, which need to be read together.
The first letter from Mr Colson was placed before the Appeal Panel but objected to by the Respondent.

Findings about Mr Colson's letters

The Tribunal finds that the first letter from Mr Colson was written as stated by Mr Coulson on 9 August 2014. It was first provided to the Respondent and the Tribunal at the hearing of Mr Leviny's Appeal to the NCAT Appeal Panel in 2014. Mr Colson's letter on 9 August 2014 states "Over the last few months I have spent considerable time with Mr Leviny". However Mr Leviny's application for review had only just been heard by Professor Walker on 14 July 2014 with a decision provided on 24 July 2014. Mr Leviny does not appear to have made any reference to having spent time with Mr Colson at the hearing before Professor Walker on 14 July 2014, even though by Mr Colson's account they had by this time been spending considerable time together.
Aspects of Mr Leviny's evidence before Professor Walker, set out elsewhere in this decision, cause the Tribunal to consider that the time spent with Mr Colson had not helped Mr Leviny to reconcile the demands of the legislation concerning storage with his own practices of convenience.
The previous Appeal Panel relevantly stated as follows in dismissing Mr Leviny's appeal in November 2014: "22. He also referred to a statement he had obtained from a gun club secretary, Mr Brendon Colson, and the positive comments it contained in relation to his experience with weapons, and his commitment to safe storage practices. His daughter, Fiona, accompanied him at the hearing, and she gave from the bar table a testimonial in support of her father. She asked for some recognition to be given to his long history, and that some leeway be shown to a person who has had to deal with the transition from the once unregulated world of use and possession of firearms by farmers to one that is now very strictly regulated. 23. In our view these are fresh matters that the administrator, the Commissioner, should have the opportunity to appraise in due course. They are not matters that would justify any interference with a well-considered, and comprehensive, decision by the Tribunal below. ……………………….. 27. In our view, Mr Leviny has continued to manifest a lack of insight into the need for him, in his circumstances, to be able to be trusted to follow storage practices that comply with current standards. 28. After his case failed before the Appeal Panel on the last occasion he applied within ten days for a new licence. He did bring an independent and credible report from a consulting psychologist to that process which led to the Commissioner narrowing his grounds for objection to the grant of a new licence. 29. It is clear that at this stage those that have reviewed his applications for restoration of a licence (the Commissioner's officers and the Tribunal members on review) remain sceptical of his personal assertions that he will comply strictly in future. For any progress to be achieved by him, he will need to produce independent, credible reports and testimonials that can be tested by the Commissioner if so desired, on the question of his preparedness to comply strictly with the new standards. He will also have to submit his facilities to inspection as required."
This Tribunal finds that Mr Leviny's comments and submissions to the Appeal Panel in 2014 cause the Tribunal to consider that any time spent with Mr Colson prior to that hearing had not helped Mr Leviny to reconcile the demands of the Firearms Act concerning storage with his own practices of convenience.
On this occasion before the Tribunal Mr Leviny has submitted that the two letters provided by Mr Colson demonstrate that he has a new understanding of storage requirements. Mr Leviny did not give evidence before this Tribunal. This Tribunal does not have evidence of what his new understanding is. By contrast there is extensive transcript of Mr Leviny's erroneous views of the application of storage requirements before the previous Tribunals and Appeal Panels.
Mr Leviny submitted Mr Colson's second report dated 14th June 2015 as part of this application for review by this Tribunal. A reading of this letter suggests that there were no new interactions between Mr Colson and Mr Leviny after Mr Colson wrote the first letter on 9th August 2014 - other than Mr Leviny contacting Mr Colson and providing him with a copy of the Internal Review decision and Mr Colson providing Mr Leviny with the letter of 14th June 2015.
Paragraph [2] of Mr Colson's letter of 14th June 2015 states : "Mr Leviny has again contacted me and given me a copy of an Internal Review of Reasons dated 26th May 2015. He was concerned that the information I had provided in my letter concerning my instruction to him appeared to not be accepted."
The actions described in paragraphs [4] and [5] of Mr Colson's letter of 14 June 2015 appear to be those undertaken in the months prior to the Tribunal's hearing before Professor Walker in July 2014 as set out in paragraphs [2], [3] and [4] of Mr Colson's letter of 9 August 2014. It appears that the only new action was Mr Leviny approaching Mr Colson for a new letter after he had received the Internal Review Reasons dated 26 May 2015.
Mr Colson was not called before the Tribunal in September 2015 to clarify this.
Further, Mr Leviny's comments from the bar table about the sequence of events in his interaction with Mr Colson did not help to clarify this issue.
The Tribunal is not satisfied that there was new instruction between Mr Colson and Mr Leviny, after August 2014, beyond that which preceded Mr Colson's undated latter of 9 August 2014.
The Tribunal notes that in his submission, Mr Leviny again returns to the events of 2012 and states: "The applicant's case where guns were registered, unloaded and out of site for an hour in a secure house with only the wife present."
It was not the case that the "guns were out of site (sic) for an hour". Mr Leviny's evidence to the first Tribunal review before Judicial Member Montgomery demonstrated that the firearms were inappropriately stored overnight and all of the next day until the police attended and took the firearms. The Tribunal refers to the decision of Judicial Member Montgomery in Leviny v Commissioner of Police, NSW Police Force [2013] NSW ADT 62 at paragraph [47]: 47. Mrs Leviny (this should read Mr Leviny) provided the following outline of the events of 7 June 2012: I had taken both rifles from the safe in the garage through the living room to the bedroom because I had seen a pair of Indian mynah birds outside and wanted to shoot them. After waiting some time a hare come onto the lawn. I loaded the .22 and went outside via the bathroom door and shot the hare. Since the .22 makes a noise that usually frightens things away, I unloaded it and put it and the air rifle away in a cupboard and went back through the family room, where my wife was cooking, to the computer room and checked the emails. ……….. The argument went on, and rather than defy my wife by making the phone call, I took a break and went to the bedroom to see what had become of the hare or the mynah birds. As I went out the door I mouthed my frustration by saying "I might as well blow my brains out". By this I did not mean that I intended to harm myself, I simply meant that it was a shame someone else was not doing this engine, as I was being totally ineffective in getting cooperation and my time would be better spent if I were out of it doing something else…………………… Seeing that there was no activity outside I immediately returned to the family room at which time the phone rang. It was the engineer saying that he would do what was needed over the weekend. My wife then served dinner. After this I went into the bedroom at which time it was dark, and found that the rifles were gone and so presumed that my wife had locked them up while I was on the phone. The next day we went to Ballina for a medical appointment for skin cancer check-ups. Sometime after we returned that afternoon my wife said, as best as I can remember; "I saw Dr Hope this morning because I am worried about the stress we are under and I told him that you had said that you might as well blow your brains out." I said "Oh no, he will take that as my wanting to kill myself, and he will get all concerned." She said; "actually he has reported it to the police and they were supposed to have come and taken your rifles while we were away". She said; "I had hidden them and I suppose they will come later." Since there was nothing that could be done, my wife went to bed after dinner and l watched TV. Sometime later my wife came back to me and told me that a car was coming down the drive (1 km long) and that it would probably be the police. It was them, and she greeted them at the door to the garage. After a short exchange the two officers came over to me and one, I don't know which one, told me that they had come to temporarily take my rifles because it had been reported that I had threatened self-harm. I made no reply other than to ask how I would get them back. He said that I should apply straight away for their return. I asked when would I get them back and one of them replied that it would only be for a month. I think he actually said, until the end of the month. Since I had been warned that they were coming, and being aware of what my wife had said to Dr Hope, there was no point in arguing. I did however explain the circumstances of the argument with my wife and show them the reason for my determination to see my engine through and why I was so passionate and the proofs I had, and so I took one of them into the computer room and showed how my engine worked. I understood that the other officer was collecting my rifles at this time. After some time they said that they had to go and they left.
This account from Mr Leviny that the guns were stored inappropriately overnight is consistent with the account of Senior Constable Robinson set out at paragraph [25] and that of Mrs Leviny at paragraph [48] of Judicial Member Montgomery's decision.
At paragraph [67] of his decision Judicial Member Montgomery specifically finds that the firearms were left stored inappropriately overnight: 67. The Applicant's evidence was that he was aware on 7 June 2012 that the firearms were not where he had left them and that he assumed that Mrs Leviny had locked them away. However, he concedes that he did not check to see whether they were stored safely. He also conceded that on 8 June 2012 he left the property without having checked whether the firearms were stored safely. He also stated that he stored ammunition other than in the approved storage safe.
This account of events which saw Mr Leviny leaving the firearms inappropriately stored for over a day was repeated in Senior Member Walker's decision at paragraphs [21]-[26].
The Tribunal finds that Mr Leviny's submission to the Tribunal that the guns were out of sight for an hour is incorrect. The Tribunal is concerned that Mr Leviny has now sought to minimise the incident of 7 June 2012.
Mr Leviny states in his written submissions: "If am granted a firearms licence I would never make such a mistake again as I value the use of my rifles too much. I have stated it was an error of judgement that I know to be wrong and am very sorry and will never allow to occur again"
The Tribunal is not clear what Mr Leviny now says the mistake or error of judgment was. The submission undermines Mr Leviny's current assertion, in the same document, of insight into his error and future practice.
Mr Leviny applied for a firearms licence six weeks after the Appeal Panel decision in November 2014. Mr Leviny has not indicated in his application what happened in those intervening six weeks to make him think any differently to the views he expressed before the previous Tribunals and Appeal Panels.

The issue for this Tribunal

The issues concerning Mr Leviny's firearms licensing have changed over time. Initially there was a concern over Mr Leviny's capacity to exercise control over firearms because of his self-harm threat on 7 June 2012 together with the storage concerns. There is no longer an issue in relation to self-harm.
The primary concern has evolved into Mr Leviny's attitude towards storage requirements and the potential for him to comply with them completely rather than selectively. There are numerous examples of Mr Leviny's evidence and submissions before previous Tribunals and Appeal Panels disclosing a flawed understanding of the storage requirements and how they would apply to his circumstances.

Public safety and public interest

This Tribunal needs to determine whether it is contrary to the public interest under subsection 11(7) of the Firearms Act for Mr Leviny to be issued with a firearms licence. As stated in Ward's case the Tribunal should be satisfied that there is virtually no risk to public safety. Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
The Respondent has submitted that when considering the public interest, public safety is paramount. The Respondent's case focusses on the role of Mr Leviny's questionable future compliance with storage requirements as being a risk to public safety, making licensing of Mr Leviny as contrary to the public interest.
The Tribunal notes Mr Colson's assertion in the 9th August 2014: "In my opinion Mr Leviny is no threat to public safety".
Mr Colson reaffirms this in his letter of 14th June 2015. However the Tribunal had no opportunity to put to Mr Colson the disturbing views expressed before Senior Member Walker and the Appeals Panel in Mr Leviny's evidence and submissions in and after July 2014, which appear to have been made subsequent to Mr Colson's tutelage of Mr Leviny. It has also not been possible to clarify what the full scope of Mr Colson's activities with Mr Leviny have been.
It is clear to the Tribunal that Mr Leviny ardently wishes to have his firearms licence returned to him to assist his farming activities. However Mr Leviny's individual interest must be subject to the public interest see Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681: 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 Phegan v Commissioner of Police, New South Wales Police Service [2002] NSWADT 127 at [19] the Tribunal said that to set aside a revocation "decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations which take their matter outside the ordinary case". No evidence is presented to take Mr Leviny's circumstances outside of the ordinary case.

Decision

This Tribunal is satisfied that past firearms storage inspections showed that Mr Leviny had previously correctly stored his firearms. There had been no previous concerns about Mr Leviny's prior conduct in relation to firearms. No criminal proceedings have been taken against him in relation to the storage issues. Mr Leviny is of good character. There is no concern that Mr Leviny is at risk of self-harm.
However this Tribunal is left with the unresolved issues of :

Mr Leviny's storage breaches on 7th June 2012;
his erroneous expression of views about storage before previous Tribunals and Appeal Panels; and
his statement in his submissions which minimises the storage issues in June 2012 to having left the firearms for one hour - contrary to the weight of previous evidence.

These concerns are not allayed by Mr Leviny's submissions that he would not repeat his mistake or error of judgment. It is unclear what Mr Leviny concedes his mistake or error of judgment to have been and hence why it will not be repeated.
The Tribunal had no opportunity to test Mr Colson's assertions that Mr Leviny presents no risk to public safety.
The Tribunal returns to the fundamental role of a licensee's compliance with storage requirements for firearms in ensuring public safety. In these circumstances, the Tribunal cannot be satisfied that there is virtually no risk to public safety were Mr Leviny to have a firearms licence. The Tribunal is satisfied that it is contrary to the public interest for Mr Leviny to have a firearms licence.
The Respondent's decision is affirmed. 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: 21 December 2015

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (1)

Cases Cited (4)

Cited By (1)