Mallon v Commissioner of Police, New South Wales Police Force

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and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

reasons for decision

1. 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.
2. 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 The licence was revoked on 2 March 2022, and on 12 April 2022 the applicant through his solicitors applied for an internal review of the revocation decision.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.
3. 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.
4. 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.
5. 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.

Applicable legislation

1. 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…."
2. 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.
3. 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".

Applicant's evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Respondent's evidence

1. 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.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]

Respondent's submissions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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".

Consideration

1. 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.
2. 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.
3. 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.
4. 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.

Fit and proper person

1. 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".
2. 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.
3. 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.

The 2019 incident

1. 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.
2. 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".
3. 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.
4. 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.

The 2021 incident and the conditional release order

1. 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.
2. 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.
3. 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.
4. 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).
5. 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.).

The references

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

The public interest

1. 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.
2. 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.
3. 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.
4. 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].
5. 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]).

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.

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