Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director-General, Transport for New South Wales v AIC (GD) [2011] NSWADT AP 65Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hamshere v Commissioner of Police, New South Wales Police Force [2012] NSWADT 244Harris v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 255Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWADT aid the 96McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206
Matus v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 111
Moss v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 262
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (14 paragraphs)
[1]
NSWCATAD 111;
Moss v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 262;
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1;
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184;
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28;
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Texts Cited: Nil
Category: Principal judgment
Parties: Peter M Mallon (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)
Representation: Solicitors:
Hartmann & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2022/00149179
Publication restriction: Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[2]
reasons for decision
The applicant Mr Peter Michael Mallon is the owner and operator of M***** Station, a cattle and sheep property at Enngonia, which is some 150 km north- west of Bourke, not far from the Queensland border. Mr Mallon applied to this tribunal on 23 May 2022 for review of a decision by the respondent Commissioner to revoke his category ABC firearms licence on 27 April 2022.
The applicant had been reissued with a category ABC licence on 15 January 2018, to expire on 15 January 2023. The licence was revoked on 2 March 2022, and on 12 April 2022 the applicant through his solicitors applied for an internal review of the revocation decision. Following the internal review, the revocation decision was affirmed on 27 April 2022.
On 7 April 2021, police attended at the applicant's property for the purpose of executing a search warrant issued pursuant to Strike Force Fairleigh, an investigation into the activities of one Brian Smith (CNI 16803617). In the course of the search police located a Stirling .22 category C semi-automatic rifle which was not registered. The applicant said it had been in the homestead of another property the family had owned called "Lattegrande Byrock" since they had purchased it some two years previously. The rifle had been found when the property was being cleaned up for sale.
On 10 February 2022, the applicant was found guilty of possessing an unregistered category C firearm and failing to keep the firearm safely. He was made subject to a conditional release order (CRO) for a period of 12 months concluding on 9 February 2023.
The applicant applied for an internal review on 12 April 2022, contending inter alia that he had pleaded guilty at the first opportunity, understood the seriousness of his offending and had an understanding of the obligations of a licence holder and would comply with the law in the future. The review application was unsuccessful and the applicant applied to this tribunal for review of the decision.
[3]
Applicable legislation
Section 24(2) of the Firearms Act provides that "A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind…."
Section 11(4)(d)(iii) provides that a licence must not be issued to a person who is subject to a conditional release order imposed in New South Wales.
Section 24(2) states that "A licence may be revoked:…(d) for any other reason prescribed by the regulations", while cl 20 of the Firearms Regulation 2017 provides that "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence". Section 24(2)(c) stipulates that a licence may be revoked "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
[4]
Applicant's evidence
At the hearing the applicant adopted his statement dated 31 August 2022 (part exhibit A1) in which he explained that he owns and operates a 40,000 acre [16187 ha] property with sheep and cattle, about 150 km northwest of Bourke. It is a 3 or 4 km drive from a main road. He requires a firearm licence for primary production purposes and originally obtained his firearms licence more than 35 years ago. It was revoked because of a breach of the firearms laws.
An unregistered firearm was located under the bed as he technically did not own it, but had taken charge of it. It was recovered from "Lattegrande Byrock", a 29,000 acre property that his family had owned for approximately two years. When they sold it, they found the firearm in question while cleaning up the property for the changeover.
They purchased the property from a husband and wife, and the husband had died during the sale process. When they took over, the wife did not return to the property to collect any belongings at all. All she wanted was the Bible in the kitchen drawer, so everything else they owned was left there. Two weeks later, the applicant found the rifle. He spoke about it to the Enngonia police officer, Constable Anderson, who was off duty at the time, and asked him to stop in on his next rural patrol. As there were four other adults and three children with him, he left it at that, leaving the officer working on a roof. When the matter was due to go to court for the first time, he telephoned the officer, who said that he remembered talking to the applicant but did not recall the specifics. He was at that time on PTSD leave.
Recently the applicant had undertaken the updated firearms course, in which he learned a great deal, particularly about unregistered firearms and storage requirements, but also other legislation that affects firearms licence holders. He believed he had learned a valuable lesson and would not reoffend.
He had employed a fellow to shear his sheep as his shearing contractor, as he was two months behind schedule. The man had also been shearing for other people in the district. Unbeknown to the applicant, the shearer had a warrant out for his arrest.
When the shearer had finished shearing the applicant's sheep, he was going to Gilgandra to shear, along with other shearers, but was apprehended. He told police that he had been at the applicant's property shearing. Two weeks later, a search warrant was carried out at the applicant's place, which was the first time anything of that nature happened to him, so he was totally in shock and could not believe it.
[5]
Respondent's evidence
The respondent called no oral evidence but relied on the documentary material, including the s 58 documents (exhibits R1 and R2) and on cross-examination of the applicant. The respondent also adduced confidential evidence (confidential exhibit CR4) in a confidential hearing pursuant to s 49(2) of the CAT Act.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[6]
Respondent's submissions
Ms Chenhall on behalf of the respondent relied on written submissions (exhibit R3) which, after setting out the background to the case and the applicable law, submitted that inherent in the licensing requirements is that persons having access to firearms must not only act responsibly and in accordance with the legislation, but also must be possessed of sufficient moral integrity and rectitude of character as to permit them to be safely accredited to the public as a person to be trusted.
The information before the tribunal demonstrated that the applicant does not possess the required moral integrity and rectitude, as was shown by event reports E73144169 (2019) and E81655416 (2021) (exhibit R1, pp 11 - 16) and charge number H78605620 (2021), (id., 17 - 19). He had failed to comply with the Act in terms of possessing unregistered firearms, failing to comply with safe storage requirements and failing to inform police about the firearm that was detected by the police.
The most recent breach occurred when police were searching for a fugitive who was on the run and who had resided at the applicant's property. When police attended at the applicant's residence on 7 April 2022 to execute a search warrant, the unregistered semi-automatic firearm was located by police under a bed in a spare room.
In relation to the public interest, the public's right to safety must outweigh an individual's interest in possessing and using a firearm in the context of the Act. The tribunal had to be satisfied that there was virtually no risk. The applicant's conduct by not handing the firearms to police or disclosing their presence in 2019 and 2021, and not keeping a firearm safely, all demonstrated that he is not a fit and proper person to hold a licence and that there is reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms as a result of his way of living. It would be contrary to the public interest for him to possess a category ABC licence.
As a result of the charges mentioned above, the applicant was released on a CRO that concludes on 9 February 2023. If he were applying for a licence now, the Commissioner would have to refuse it because of the mandatory prohibition in s 12(5)(d)(iii). A discretion remains, however, where a licence is revoked rather than refused, because s 24(2)(a) states that "a licence may be revoked for any reason which the licensee would be required to be refused a licence of the same kind".
[7]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[8]
Fit and proper person
The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
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, or 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.
[9]
The 2019 incident
The respondent relies on three main matters in support of the submission that the applicant is not a fit and proper person to hold a firearms licence. The first is event report E73144169, which describes how on 12 September 2019, police attended at M**** Station, Enngonia, and performed a safe storage inspection with the applicant present. They found all registered firearms safely stored in accordance with the regulations, but also located an Anschutz rifle that was not registered, inside his firearms safe (exhibit R1, p 15). It appeared not to have been used for several years.
His explanation at the time was that the rifle had been given to him over 20 years previously and other police had checked it during inspections and taken no action. It had no bolt in it and could therefore not be fired, but even if it had been intact, it was useless as the barrel was warped. The applicant said that he "used to the firearm to bash snakes' heads in which were in the house at the time". It had been left on the nearby grave of the bushranger Captain Midnight "to look authentic".
Police left the property without taking possession of the rifle as they were unsure if it was registrable, given that it had no mechanism, and needed to make further enquiries about it. According to the applicant, attending police had seen the rifle during previous safe storage inspections (of which there would probably have been five since his licence was issued in 2003) but took no action, believing it not to be registrable. That was certainly the case during the September 2019 inspection.
In those circumstances that contravention seems to be more in the nature of a technical breach than of any threat to public safety. In my view it does not merit substantial weight.
[10]
The 2021 incident and the conditional release order
Event E81655416, 7 April 2021, the second matter relied on by the respondent, is more significant, however. On that date police executed a search warrant at the applicant's property pursuant to the operations of police Strike Force Fairleigh, which was investigating the activities of Brian Smith. They explained that police thought Brian Smith might have been using the applicant's firearms, and they intended to take all the applicant's firearms away to test them for fingerprints and similar traces. As the evidence before the tribunal is silent on the question of whether any prints or similar indications were actually found, it may be concluded that none of Smith's prints or similar traces were found on the firearms.
The attending police found all 13 registered firearms in his gun safe, but also found a Stirling .22 class C semi-automatic rifle under a bed in a spare room. The report stated: "Police cautioned the accused and he was given the opportunity to declare if he had any firearms or other ammunition which he wasn't registered to have. The accused stated the homestead contained no additional firearms…. On 12 September 2019, a safe storage inspection was conducted at the homestead, and the accused was given the opportunity to declare the firearm then however failed to do so" (id., 12). Thereupon his licence was suspended.
As a result of that incident, the applicant was charged with possessing an unregistered prohibited firearm, failure to keep a firearm safely and some other counts that were withdrawn (charge H78605620). He was made subject to a conditional release order without conviction, for a period of 12 months from 10 February 2022 until 9 February 2023 (id., 9, 18 - 19). The CRO was the third matter on which the respondent relied.
The respondent pointed out that if the applicant were applying for a licence today, while still subject to the CRO, the licence would have to be refused because of the mandatory prohibition in s 11(5)(d)(iii). A discretion remains, however, where, as in this case, a licence was revoked rather than refused, because s 24(2)(a) states that "a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind" (my emphasis).
There has been some discussion in the cases about whether that differential treatment represents an anomaly, but in the recent case of Grant v Commissioner of Police [2020] NSWCATAD 158, [28], [31], the tribunal reconciled the conflicting viewpoints: "[T]he legislature has provided for differential treatment in the circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way" (ibid.).
[11]
The references
The applicant also tendered a number of character references (exhibit R1, pp 90 - 92). Ms Sally Muenster of Coongarra Station, wrote on 9 February 2022 that she is aware of the charges at Bourke Local Court. She has known the applicant and his family for over a decade as long-standing and well-respected members of the Enngonia community. He had been involved in their business with his heavy machinery and most recently with his livestock transport business. They had engaged him with his business on a regular basis and had always found him to be extremely punctual, hard-working and honest, having always maintained a very high level of business integrity at all times.
While not aware of the specific circumstances of the offences, Ms Muenster does consider them to be out of character and more than likely an oversight on his part. She believes that owing to the stress and strain that the offence had meant for the applicant and his family, it was unlikely that this type of offence would recur. She believes he is now more aware of the legislation surrounding firearms registration and storage and will make every effort in the future to ensure compliance.
Mr Ric O'Brien of "Shirleyvale" at Binnaway has known the applicant for approximately 16 years, during which time he had shown himself to be a genuine family man and a great contributor to society, including being a member of the bushfire brigade and on the Enngonia Races Committee. It was a great surprise to him when the applicant called to explain that he had been charged with firearm offences, when previously he had noted how respectfully he handled firearms.
He believes the applicant is quite remorseful for his error of judgment in this matter, especially considering the difficulties he would encounter in the event of losing his firearms licence in the day-to-day operation of his business.
Mr Bill Ridge, wool grower of "Tuon Station" wrote in February 2022 that the applicant had told him about the charges. Mr Ridge had known him most of his life, during which time he had been in a professional and personal relationship with his shearing contracting business, and more recently his time as a transport operator, and currently as a wool grower.
The Mallon family had had a long-standing presence in the district and had been involved in all district organizations and charities. Peter had carried that through to the present generation. He had always been punctual, trustworthy, reliable, honest and a respected member of the Enngonia community. During Mr Ridge's time as president of the Enngonia Race Club, he had always been a loyal committee member and sponsor, and his contribution at working bees and race day jobs had always been first-class and commendable.
[12]
The public interest
The other ground on which the respondent advocates licence cancellation is that it would not be in the public interest for the applicant to hold the licence, within the meaning of s 24(2)(d) and cl 20.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
In an often-cited passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy A/DCJ has cautioned against applying that language in a mechanistic way, pointing out in AML in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
[13]
Orders
1. Decision under review set aside.
2. A category ABC firearms licence is to be restored to the applicant.
3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR4, or matters contained in the Confidential Material and confidential exhibit CR4 is prohibited.
4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR4, or matters contained in the Confidential Material and confidential exhibit CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.
5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[14]
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: 06 October 2022
Parties
Applicant/Plaintiff:
Mallon
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He realized that he should have taken further action with regards to the firearm, but was waiting for the Enngonia police officer to call in. That did not excuse him from at least storing the firearm correctly, and he regretted the way he had handled the entire situation.
In oral evidence at the hearing, Mr Mallon explained that as he had thought that as the rifle did not belong to him, he should not keep it in his safe. He had never used it because he was not interested to in doing so, as he already had one of the same calibre for small game and pests.
He had learned at the course how important safe storage was, and what his obligations were if he were to find a firearm. He had previously been lax about such matters before, as he did not think it was a problem "out in the sticks". He kept his firearms in a large safe bolted down in a cupboard. He could not run his property without firearms.
He had employed Brian Smith and other shearers to shear his sheep, housing them in shearer accommodation. He had some 4500 sheep, together with lambs, as it was now the lambing season.
The police had given him advance notice of a safe storage inspection, but executed the search warrant at the same time. Two uniformed officers and three detectives came to the property, and it was the first time he had ever experienced such a thing. He is an introvert and was rattled and flustered, though he realized that was no excuse. Before the 2021 search he had been lax about such matters, thinking that it was not so important way out in the bush.
The applicant agreed that in the course of a safe storage check on 13 September 2019, police had found an unregistered firearm in his safe. He explained that the grave of the bushranger Captain Midnight was in their locality and the gun had been left on his grave to make it look authentic. It contained no action and could not have been fired even if it had been complete. It had been left there when the property was sold. The police had asked him to bring it in, but he had omitted to do so. He should have been mindful of his obligations, but they were "just out of a raging drought".
He had not known at the time that Brian Smith was wanted by police, nor had his neighbours known, though he was aware that Smith had marital problems and his wife had charged him with domestic violence. She had, however, been sentenced for "making charges up". When police had asked him about Smith, he had replied that he did know a little from a Facebook post that his former partner had put up, in which she had said that he was seeing another woman.
On 7 April 2021, he had said to police that he knew Smith was wanted, but that was after he had shown them his shearing shed and they had told him that a warrant was out for Smith. He had asked them twice what Smith had done, because of all the fuss about him, and had learned more as they went along. He had told police that he was concerned about having his sheep shorn, but he was rattled because of the search and would have said anything. He agreed that his main focus at the time was getting his sheep shorn, as at that time of the year that was always his main focus. Smith was a good shearer and had made no trouble at the property or in the area. He had never socialized with Smith.
He agreed that he could have phoned the police when Smith had left, but he had said that Smith was gone and "out of my hair". Smith was arrested a week later at Dubbo. He also agreed that in his internal review application he had not mentioned that he had raised the matter with Constable Anderson. However, the officer had said he could not recall the specifics, and he was on PTSD leave. He understood that it was his responsibility to hand the rifle in, but he had not realized how important it was to do so. He had not wanted the rifle in his safe with his own firearms, as he did not think it was legally his. He had held a category C licence at the time.
The applicant relied on three recent character references (exhibit R1,pp 90 - 91), the contents of which are summarized below.
As was stated in McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 96, [36[,
In the case of a person who already holds a licence, the Commissioner may consider the person's licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. The differential treatment has been seen both as anomalous and as not necessarily anomalous: Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [28], [31].
The correct approach was to have regard to the terms of s 24(2)(a) in its statutory context, including the Act's principles and objects. As Hennessy DP had remarked, the "discretion should be exercised in a way which promotes the principles and objects of the Firearms Act": Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]).
The applicant had been unable to demonstrate a history of safe storage. Rather his conduct demonstrates the opposite, including a willingness to lie to the Commissioner and attempt to deceive the police attending his property in 2021.
[NOT FOR PUBLICATION]
In oral submissions at the hearing, Ms Chenhall reiterated those points and referred to the transcript of the applicant's conversations with police at the time the search warrant was executed (exhibit R2, pp 9 - 12). Police had made an appointment with him for a safe storage inspection but the intent was to execute the warrant.
There had been two instances of the applicant's having unregistered firearms, the first being on 13 September 2019 during a safe storage inspection. No charge was laid because the applicant had not attempted to hide the firearm. But in 2021 the class C firearm was hidden and not properly stored. The applicant would have been aware of his obligations under the firearms legislation, even in 2019. He did not refer to his conversation with Const. Anderson, either in the video recording order in the internal review application. As the officer had not been called to give evidence, the tribunal should find that the applicant chose to take possession of the rifle and not handed in.
The video recording showed that he was aware that arrest warrants were out for Smith, but had said he wanted to get his sheep shorn. That was relevant to fitness and propriety. His CRO was still current and if he had applied for a licence now, it would have had to be refused. It was anomalous that a discretion existed when a licence had been revoked, and exceptional circumstances would be needed before the discretion should be exercised in the applicant's favour. There was no evidence that he had any problems in arranging for others to shoot on his property. Most of his character referees had no knowledge of the circumstances of the offences. No weight should be placed on Matus v Commissioner of Police [2022] NSWCATAD 111.
[NOT FOR PUBLICATION]
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In other cases the respondent has submitted that it would only be in special or exceptional circumstances that the discretion in s 24(2)(a) could be exercised in such a way as not to revoke a licence: Hamshere v Commissioner of Police, New South Wales Police Force [2012] NSWADT 244, [14], in which the tribunal said, "Although the Commissioner has a discretion in this regard where a conviction occurred after the licence has been issued, in my opinion it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence".
On the other hand, it should be noted that Hennessy A/DCJ has criticized the practice of placing a "judicial gloss" on the plain meaning of the statutory tests in the Firearms Act: "The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests", her Honour has said (AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [7]). While the statutory discretion thus appears to be unfettered, there should nevertheless be some proportionality between the gravity of the offence and the readiness to exercise the discretion in favour of an applicant, subject also to the Act's overriding objective of protecting public safety.
The internal review pointed out that the applicant had been given the opportunity to declare the unregistered rifle to police on two occasions and made no effort to do so: "Further, it appears that since you acquired the unregistered firearm you deliberately chose to illegally possess it without making any effort to dispose of it or bring it to police attention" (id., 3).
At the same time, the reviewing officer stated that, "In making a determination, I place weight on the fact that you are a primary producer and you have held a lengthy unblemished history of firearms authorisation before you came to adverse notice regarding your access to firearms" (ibid.).
The applicant's explanation was that he did not think the rifle was his property and did not wish to store it in his gun safe with his own firearms. On the day of the search, he had been led to expect a safe storage inspection, as police had made an appointment with him for that day for that purpose. Instead, he was confronted with two uniformed officers and three detectives executing a search warrant, something he had never experienced before. The video recording shows the attending police explaining to the applicant that they believed Brian Smith might have been using his firearms, and they intended to take all his firearms away to test them for prints and similar traces.
He describes himself as an introvert and said that he had been flustered and rattled by the course of events. In the circumstances he "would have said anything", but recognized that he had no excuse. He admitted that before the 2021 search, his attitude to the regulations was lax, as he did not think them so important "way out in the bush". As a primary producer, he could not run his property without guns.
Two weeks after he had found the rifle on the property he was selling, he contacted Constable Anderson of Enngonia police, who was off duty at the time, and asked him to stop in on his next rural patrol to collect the rifle. Before the date of his first court appearance on the firearms charges, he contacted Const. Anderson about the matter, who said that he remembered talking to the applicant but did not recall the specifics. He was on PTSD leave at the time. The respondent was critical of the applicant's failure to call the officer to give evidence or to raise the matter earlier, but as the officer could recall their conversation but not the specifics of their discussion, there might have been little point in calling him. Nevertheless, the applicant could have mentioned the conversation earlier in the proceedings.
His only contact with Brian Smith, who was evading police at the time, was as a contract shearer on his property. Smith had also been shearing on some neighbouring properties. He was a good shearer and it was difficult in that area to obtain the services of shearers at all. He was preoccupied with having his flock shorn, as he was two months behind schedule and the area was just emerging from "a raging drought". He was aware of an uncomplimentary Facebook post placed by Smith's ex-de facto and that there had been problems between them. She had later been convicted of making false reports, he said.
He was thus unaware of Smith's criminal history and knew only that he made no trouble in the area. Smith was accommodated in the shearers' quarters and the applicant had never socialized with him. He had come to know about Smith's antecedents when police told him as he was showing them around his property during the search.
The attending police had explained to him that the purpose of the search warrant was to seize his firearms and test them for fingerprints or other traces, as they believed that Smith might have been using them. The absence of evidence of any such prints or traces having been found on examination suggests that there were none and that the applicant's only connection with Smith was, as he claimed, that of an employer with a contract shearer. The information that had aroused police suspicions thus may have been unreliable.
He had undertaken the updated firearms course recently, and had learned much, particularly about unregistered firearms and storage requirements, but also about other legislation affecting licence holders. "I believe I have learned a valuable lesson and will not reoffend", he wrote. He attached a certificate from Firearm Safety and Training Council Ltd dated 28 April 2022 certifying that he had successfully completed a course of study on firearms ownership, possession and use (part exhibit A1).
The Council is a registered training organization approved by the New South Wales Firearms Registry for the delivery of the firearms pre-licence qualification course, a mandatory course for all New South Wales firearms holders. The Council's CEO noted in a covering letter that "The course includes an examination of the issues that gave rise to the cancellation of your firearms licence and the knowledge and measures necessary to prevent any recurrence".
It is not disputed that the unregistered firearm was found in the Byrock house when renovations were being undertaken before sale after it had been acquired about two years previously. The applicant's firearms safe was full with his 13 registered firearms, and would not accommodate a 14th long arm. The Stirling was to be handed in under an amnesty, but no amnesty was available throughout his holding of the rifle.
The spare room in the homestead was in fact the locked ammunition storage receptacle, and was unlocked only for the purposes of the search. The ammunition in it was thus effectively safely stored. The unregistered rifle kept in that room, though not in an approved safe, was for practical purposes not accessible to Brian Smith or to any other shearer or other person who might have been on the property at the time. There were no aggravating features in the offences: the firearm did not come into the hands of unauthorized persons, nor was it lost or stolen. It was unloaded.
The applicant is a man aged 56 who, apart from a $50 fine for entering enclosed lands in 1994, has no criminal history. He owns and operates a 40,000 acre sheep and cattle property, as well as some smaller properties, and also runs trucking and machinery businesses. The references summarized below show that he is well liked and regarded in the Enngonia area. He had held a firearms licence for 35 years and, as the internal review noted, he had held "a lengthy unblemished history of firearms authorization before [he] came to adverse notice regarding [his] access to firearms".
At the time of the offences he held an ABC licence which covered all the firearms in his possession, including the Stirling. He has no record of violence or of threatening violence against any person. As there is no traffic history before the tribunal, presumably he has no significant record of traffic offences either.
The 2021 offences are, however, significant breaches of the regulatory scheme, although in that remote location they do not appear to have involved any direct threat to public safety. He had two opportunities to inform the attending police about the Stirling but failed to do so. His account of contacting Const. Anderson of Enngonia police to ask him to collect it on his next rural patrol is not corroborated, but as it identifies a named officer and his station and is not contradicted, it can reasonably be accepted as correct.
The applicant has also expressed emphatic remorse and contrition over the offences and has taken active steps to avoid any future repetition by undertaking the new Firearm Safety and Training Council course in firearms legislation and practice, which specifically focused on the matters that gave rise to the cancellation of his licence and to the knowledge and measures necessary to prevent any recurrence. He gives every appearance of having internalized the lessons he learned in that course and of being determined to avoid any repetition.
While unaware of the circumstances of the charges, he believes that the reason Peter had an unsecured, unregistered firearm was nothing more than an oversight. It should be borne in mind that the immense obligations on all producers to comply with the many facets of rural business could result in compliance requirements very occasionally being missed. He believed that Peter is more aware of registration requirements and that the offence would not occur again. He believes the impact of the financial strain and mental stress on the applicant would mean that, moving forward, it was unlikely that this compliance issue would happen again.
In light of all the evidence I am satisfied on the preponderance of probabilities that the applicant is a fit and proper person to be licensed to possess and use firearms and there is no reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms. I so find.
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
Ms Chenhall submitted that there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms, as a result of his way of living and that the tribunal could not be satisfied that he can be trusted to have possession of firearms without danger to public safety. For those reasons, it was submitted, it would be contrary to the public interest for the applicant to possess a category ABC firearms licence.
For the reasons given above in connexion with fitness and propriety, the evidence does not support the view that the applicant would present any real or appreciable risk to public safety, as understood in Webb. Until the 2021 incident, and at the earliest the 2019 matter, he had an unblemished record of compliance with firearms legislation over a period of more than 30 years. He has no significant criminal or traffic record and no history of violence or threatened violence. There is no suggestion that he has ever used firearms in a dangerous or negligent manner, quite the contrary in fact, as one of his referees attested..
The 2021 matter and the ensuing charges did him no credit, but there were extenuating circumstances and he has expressed remorse and contrition over the breaches. As Mr Kable pointed out, in Matus v Commissioner of Police [2022] NSWCATAD 111 the tribunal had to deal with a case in which the applicant received a s 10 dismissal on a charge of possessing an unregistered firearm. In ordering the issuance to the applicant of a licence subject to conditions, the tribunal said, "I accept that it [the offence] reflects badly on his attitude towards the strict requirements under the Act. Nevertheless, the Court's order reflects the actual risk to the public from the conduct. In my view this is not an issue that should be given any significant weight in regard to the issue of whether it is not in the public interest for the licence application to be granted" (at [77]).
In similar vein, in another recent case, Moss v Commissioner of Police [2020] NSWCATAD 262, the tribunal chose not to affirm the revocation of a licence for a safe storage violation but instead suspended it to permit the applicant to undertake a firearms safety course (at [42] - [43]). In this case the applicant has already undertaken a firearms safety course partly adapted specifically to deal with his contraventions and to ensure that nothing of the kind recurs. There remains to consider, however, the confidential evidence.
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The applicant is a professional grazier owning and operating a 40,000 acre sheep and cattle property. He also runs a trucking company and has other business interests and is a productive member of the community. It is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry.
The contraventions on his record, especially the 2021 incident and the ensuing charges, constitute significant blemishes on his record. He has, however, taken active steps to remedy the situation by undertaking an approved course on firearms safety and legislation, from which he says he learned a great deal. He is regretful of his transgressions and there appears to be no real risk that he will reoffend. The decision under review should be set aside and a category ABC licence should be restored to him.