Masterson v Commissioner of Police

Supreme Court of NSW|2018-06-13|Before: Adamson J

Solicitors: Bartier Perry (Defendant) File Number(s): 2017/345935 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2017] NSWCATAP 206 Date of Decision: 31 October 2017 Before: M Harrowell, Principal MemberJ McAteer, Senior Member File Number(s): 2017/00345935

Introduction

By summons filed on 15 November 2017, Tristan Masterson (the plaintiff) seeks leave to appeal against the decision of the Appeal Panel (the Appeal Panel Decision) of the Civil and Administrative Tribunal (the Tribunal) made on 31 October 2017: Masterson v Commissioner of Police [2017] NSWCATAP 206.
This Court's jurisdiction arises from s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) which relevantly provides: "83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. . . ."

The First Tribunal decision

The plaintiff applied to the Tribunal for administrative review of the Internal Review Decision. The documentary material relied on by each party, which included witness statements, was filed in the Tribunal. When the hearing commenced before Senior Member Scahill on 14 July 2016, the two parties tendered the evidence on which they relied. There was cross-examination of witnesses. The hearing was adjourned part-heard to 23 September 2016 and concluded on that day. The Senior Member reserved her decision.
The central issues for the Tribunal's consideration turned on the characterisation of particular items which were found during the execution of the search warrant at the plaintiff's premises and whether the possession or use of those items constituted, on the balance of probabilities, a contravention of either the Act or the Weapons Prohibition Act.
On 11 January 2017, the Tribunal (Senior Member Scahill) affirmed the Commissioner's decision to revoke the Licence (the First Tribunal Decision): Masterson v Commissioner of Police [2017] NSWCATAD 17.
The Senior Member found that the plaintiff's licence ought be revoked on the basis of the following: 1. The plaintiff was in possession of a stock which was designed to be telescopic and was, accordingly, a prohibited weapon within the meaning of cl 11 of Sch 1 of the Act (the Stock Finding) ([270] of the Initial Tribunal Decision); 2. The plaintiff had used a 3-D printer for the purpose of manufacturing two items, a rail and a magazine, the manufacture of which was not authorised by the plaintiff's licence (the 3-D Finding) [243]-[245] of the Initial Tribunal Decision); 3. The plaintiff was in possession of parts of a magazine which, when assembled with other parts, would have a capacity of 15 rounds which amounted to a breach of the Weapons Prohibition Act (the Magazine Finding) ([147] of the Initial Tribunal Decision); 4. The plaintiff's cavalier attitude towards firearms legislation ([47], [50], [113] and [281] of the First Tribunal Decision); 5. The Tribunal's lack of confidence that the plaintiff would not commit further breaches of firearms legislation ([282] of the First Tribunal Decision); and 6. There was no economic reason for the plaintiff to have a firearm, other than for recreational purposes ([284] of the First Tribunal Decision).

The Appeal Panel Decision

As referred to above the Appeal Panel dismissed the plaintiff's appeal from the First NCAT Decision on 31 October 2017. It upheld the Stock Finding and the Magazine Finding but rejected the 3-D Finding. It confirmed the revocation of the plaintiff's Licence.

Firearms Act

Section 7(1) of the Act prohibits the possession and use of a prohibited firearm unless the person is authorised to do so by licence or permit. Section 4 defines "prohibited firearm" by reference to Sch 1 of the Act, which includes, relevantly, in cl 11: "A firearm, not being a pistol, fitted with a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis."
The relevance of whether a stock can operate on a telescopic basis is that a telescopic stock can be more readily concealed as it has the effect of reducing the apparent size of the firearm.
Section 4(1) defines "firearm" and "firearm part" broadly, as follows: "firearm means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm. firearm part means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm."
Section 4(2) also, relevantly, provides: "For the purposes of this Act: (a) anything that would be a firearm if it did not have something missing from it, or a defect or obstruction in it, is taken to be a firearm, and (b) any firearm that would be a prohibited firearm: (i) if it did not have something missing from it, or a defect or obstruction in it, or (ii) if it were not for the fact that something has been added to it, is taken to be a prohibited firearm . . ."
Section 8 of the Act provides for specified categories of licence, the firearms to which they apply and the authority which they confer. The plaintiff's Licence was for categories A and B, which relevantly provided: "8 Licence categories and authority conferred by licence (1) The categories of licences, the firearms to which they apply, and the authority they confer, are as follows: Category A licence Firearms to which the licence applies: • air rifles • rimfire rifles (other than self-loading) • shotguns (other than pump action, lever action or self-loading) • shotgun/rimfire rifle combinations. All prohibited firearms are excluded from this licence category. Authority conferred by the licence: The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm. Category B licence Firearms to which the licence applies: • muzzle-loading firearms (other than pistols) • centre-fire rifles (other than self-loading) • shotgun/centre-fire rifle combinations • lever action shotguns with a magazine capacity of no more than 5 rounds. All prohibited firearms are excluded from this licence category. Authority conferred by the licence: The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm."
Section 24(2) of the Act relevantly provides that: "(2) 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, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations." [Emphasis added.]
Clause 19 of the Firearms Regulation 2006 (NSW) relevantly provided, at the time of the Original Decision and the First NCAT Decision as follows: "19 Revocation of licence - additional reasons 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."
In order to ascertain the meaning of the "public interest" in the context of cl 19, it is necessary to consider the Act as a whole, including s 3. Section 3 relevantly provides: "3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: . . . (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, . . ."
The Act contains several controls on the possession and use of firearms and sanctions, including criminal sanctions for breach of its provisions. Section 11, which provides for the grant of licences, relevantly provides: "(3) A licence must not be issued unless: (a) 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 . . ."
The power conferred on the Commissioner by s 24 to revoke licences granted under the Act is also broad, as the extract from s 24(2) set out above, illustrates.
In Kocic v Commissioner of Police NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368, Basten JA, at [1], referred to "the significant emphasis . . . placed [by the Act] upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant."
The public interest in the context of firearms legislation (the Act and the Weapons Prohibition Act) requires that those who are licensed to possess and use firearms be strictly vetted. The capacity of firearms to kill and cause grievous bodily harm makes control of their manufacture, possession and use essential in any civilised society. The system of licensing provided for by the Act is an important aspect of the legislative controls on the use, possession and manufacture of firearms.

Weapons Prohibition Act

Section 7(1) of the Weapons Prohibition Act provides that a person must not possess or use a prohibited weapon unless the person is authorised to do so by permit. Section 4 of the Weapons Prohibition Act defines "prohibited weapon" by reference to Sch 1. Of present relevance, cl 4(4)(c) of Sch 1 includes in the list of prohibited weapons a detachable centre-fire firearm magazine with a capacity of more than 10 rounds.

The Tribunal's jurisdiction

The Tribunal's jurisdiction to review the Internal Review Decision was derived from s 75(1)(c) of the Act and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 75 of the Act relevantly provides: "75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions: . . . (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), . . ."
Section 9 of the ADR Act relevantly provides: "9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or . . ."
Division 3 of Part 3 of the ADR Act relevantly provides that, in determining an application for an administrative review (under the ADR Act) of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to relevant factual material and the applicable law: s 63(1). For that purpose the Tribunal is entitled to exercise all of the functions conferred by legislation on the administrator who made the decision under review: s 63(2). In determining such an application, the Tribunal may decide to affirm, vary or set aside the decision and, if the last-mentioned, the Tribunal may either make a decision in substitution or remit the matter for reconsideration by the administrator: s 63(3).
Section 66 of the ADR Act provides that the Tribunal's decision determining such an application takes effect on the date on which it is given or such later date as may be specified in the decision and that if any such decision varies or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken to be the decision of the administrator (other than for the purposes of an administrative review under this Act), and to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise.

Consideration

The plaintiff seeks leave to appeal against the Appeal Panel Decision on eight grounds, which are summarised as follows; 1. The Original decision and the Internal Review Decision were unlawful. 2. The Senior Member had regard to material which ought not have been before the Tribunal by reason of the TIA Act. 3. The Appeal Panel erred in finding that the Vektor Rifle had a stock specifically designed to be telescopic, which made it a prohibited firearm in the plaintiff's possession. 4. The Appeal Panel erred in construing the plaintiff's Licence. 5. The Appeal Panel erred in finding that the plaintiff was not entitled to make firearms parts within his Licence. 6. The Appeal Panel erred in finding that the plaintiff had attempted to make firearms parts using a 3-D printer. 7. The Appeal Panel Decision was unreasonable in that the plaintiff did not pose a risk to the public interest. 8. The Appeal Panel Decision ought be set aside because of the alleged illegality of the defendant and his representatives.
These grounds will be considered in turn.

Ground 1: alleged unlawfulness in the Original Decision and the Internal Review Decision

The plaintiff submitted, pursuant to the first ground, that the Original Decision and the Internal Review Decision were made in bad faith; were affected by bias; and improperly took into account evidence obtained from telephone intercepts procured by warrant.
The difficulty with this ground is that it depends upon the Original Decision and the Internal Review Decision being operative decisions. An analogous question arose in Valuer-General of New South Wales v Oriental Bar Pty Ltd [2016] NSWCA 48. Basten JA said, of the nature of the appeal to the Land and Environment Court from the determination of the Valuer-General, at [32] "[I]n broad terms, it should be understood as a form of appeal by way of new hearing, with the order made by the Court superseding the determination of the Valuer-General, by analogy with the reasoning in Wishart v Fraser dealing with an appeal to Quarter Sessions from a magistrate. This conclusion is supported by three aspects of the statutory scheme. First, s 40(1) envisages that, in circumstances where the valuation is upheld, the court would make an order to "confirm" the decision of the Valuer-General. It would then be the confirmation by the court which had effect in law. A power to dismiss an appeal might be ambiguous in this regard, the power to confirm is less so."
The plaintiff's initial application to the Tribunal for review of the Internal Review Decision invoked the Tribunal's jurisdiction under s 75(1)(c) of the Act and s 9 of the ADR Act. Once the Tribunal had determined the plaintiff's application for review of the Internal Review Decision, it was the Tribunal's decision affirming that Internal Review Decision under s 63(3) of the ADR Act, which became the operative decision. Similarly, when the plaintiff appealed to the Appeal Panel for review of the First Tribunal Decision and the Appeal Panel made the Appeal Panel Decision, the operative decision became the Appeal Panel Decision, which was to refuse leave and confirm the First Tribunal Decision. Nice questions may arise when the right of appeal is limited to, for example, a question of law. In these circumstances, it is possible that the earlier decision can still be challenged, notwithstanding that an application for review has been determined: see the discussion in Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [82]-[100] (Sackville AJA, Leeming JA and Adamson J agreeing). However, in the present case, no such questions arise as the Tribunal's First Tribunal Decision was not relevantly limited.
Accordingly, the first ground is not competent since it seeks to challenge the Original Decision and the Internal Review Decision, which are no longer operative.

Ground 2: alleged erroneous admission of telephone intercept material

The plaintiff submitted, with respect to ground 2 of the summons, that the Commissioner tendered in evidence before the Tribunal "hearsay communications material" which was said to be in breach of s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act). The documents which were said to contain such material were as follows: 1. Paragraphs 6-11 of the Facts Sheet prepared by NSW Police in respect of the plaintiff for the alleged commission of the Receiver and Vektor Rifle charges (the Facts Sheet); 2. Paragraphs 22-27 of, and annexure "H" to, the statement of Detective Senior Constable Ferris dated 10 September 2015; 3. Parts of the Commissioner's written outline of submissions. 4. (the Tainted Material).
The plaintiff relied on the TIA Act, which prohibited the use of interception information. It was common ground that the Tainted Material constituted interception information and could not be tendered in the proceedings before the Tribunal. I understand that the Tainted Material revealed the contents of recorded telephone conversations between the plaintiff and Paul Francis, whose telephone service was the subject of the telephone interception warrant.
It is not necessary to set out in detail what occurred in the hearing before Senior Member Scahill. For present purposes, it is sufficient to note that the Commissioner accepted that the Tainted Material had been filed with the Tribunal. At the commencement of the hearing before the Senior Member, the Commissioner confirmed that no reliance was placed on the Tainted Material. Mr Mattson, who appeared for the Commissioner in the Tribunal, handed up redacted versions of the Facts Sheet, Detective Ferris' statement and the written submissions, from which the Tainted Material had been removed. The Tribunal noted the Commissioner's confirmation and informed the parties that the material (which I have defined as Tainted Material) would not be taken into consideration. The plaintiff's counsel, Mr Ramage, acknowledged the Tribunal's statement by thanking the Senior Member.
The Appeal Panel addressed the plaintiff's argument (which was made in similar terms before it). It found, at [127] that: "No evidence was identified to suggest, let alone establish, that the Tribunal in any way considered, had regard to or was influenced by the inadmissible material."
The plaintiff submitted, in this Court, that the Senior Member indicated, at the outset of the hearing, that she had read the filed material. As referred to above, the filed material included the Tainted Material. The plaintiff contended that it followed that the Senior Member had read the Tainted Material, which was not relied upon. As I understood the plaintiff's submission, it was that the mind of the Senior Member must have been infected by the Tainted Material and, accordingly, the First Tribunal Decision ought be set aside, either because there was a reasonable apprehension of bias, or because it was illegal for the Tainted Material to be taken into account.
I reject the plaintiff's submissions. First, for the reasons given above, the First Tribunal Decision is no longer operative and therefore cannot be challenged, except through the decision of the Appeal Panel. Secondly, in any event, the course adopted before Senior Member Scahill was acceded to by Mr Ramage on behalf of the plaintiff. The plaintiff can, in these circumstances, be taken to be bound by the conduct of his counsel: R v Birks (1990) 19 NSWLR 677 at 683-685 (Gleeson CJ, McInerney J agreeing). Had objection been taken to the possibility that the Senior Member's mind would have been irrevocably tainted by the Tainted Material, an application could have been made for her to recuse herself and for another member to be allocated to determine the matter. However, this course was not taken. Mr Ramage accepted both the Commissioner's concession that the Tainted Material would not be relied upon and the Senior Member's assurance that it would play no part in her decision.
Thirdly, as the Appeal Panel found (at [127]), there was no indication in Senior Member Scahill's reasons that she had acted in any way contrary to her confirmation. Although she referred to the fact that a person's (not the plaintiff's) telephone service had been intercepted, this was by way of background. No reference was made to the content of any intercepted calls. The plaintiff bears the onus of establishing that there was an error: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67]-[70] (Gummow J). He has failed to discharge the onus.
I note for completeness that the plaintiff raised a further matter in his oral submissions which, though separate from, is at least tangentially related to, count 2. He contended that the Senior Member had erred in allowing evidence of Mr Francis' criminal record and facts sheets concerning offences alleged to have been committed by Mr Francis. I accept the submission made by Mr El-Hage, who appeared on behalf of the Commissioner, that this argument cannot result in a question of law for this Court as the Tribunal accepted the submission made on behalf of the plaintiff that the plaintiff's association with Mr Francis did not count against him. Ultimately, the Tribunal found at [249]: "Mr Masterson's evidence that he did not know Mr Francis was unlicensed was not contradicted. The Tribunal is not satisfied that Mr Masterson has committed any offence in his association with Mr Francis."
As the plaintiff was successful on this point before the Tribunal, it was not a matter which arose for the Appeal Panel's consideration.

Ground 3: alleged error in finding that the firearm was prohibited

In ground 3, the plaintiff seeks to challenge the Tribunal's Stock Finding (that the Vektor Rifle had a stock specifically designed to be telescopic, which made it a prohibited firearm in the plaintiff's possession).
The Senior Member found, at [225] of the First Tribunal Decision, that the stock was not readily detachable from the firearm and that it did not meet one aspect of the definition in cl 11 of Sch 1 (see above). However, the Senior Member made the Stock Finding, which had the effect of making it a prohibited firearm within cl 11 of Sch 1 of the Act. The Tribunal's conclusion that the stock was a prohibited weapon was based, in part, on the evidence of Detective Ferris that, at the time the search warrant was executed, the stock could be moved forward and backwards when a pin was loosened. Detective Ferris was cross-examined on this evidence. The Senior Member ultimately accepted his evidence (see First Tribunal Decision [227]). Senior Member Scahill found that Detective Ferris' evidence was consistent with Mr Wilson's certificate of August 2012, when he examined the rifle: The First Tribunal Decision [226]-[227]).
Although the finding was based on the evidence of Detective Ferris and Mr Wilson (the expert called by the Commissioner), it was amply supported by admissions made by the plaintiff. The plaintiff admitted that the stock had been designed to be telescopic but said that he had taken steps to alter it such that it was no longer telescopic. The Tribunal referred to this alteration in its reasons at [261] as follows: "Mr Masterson had the new stock fitted to the Vektor Rifle, he had packed cardboard around the pin to stop it moving. This indicates to the Tribunal that Mr Masterson was aware that the telescopic stock may not have been a lawful addition to the Vektor Rifle."
Further, the Senior Member said, at [265]: "The Tribunal is satisfied that the contravention of section 7 of the Firearms Act 1996, possession of a prohibited firearm, is sufficiently serious to warrant revocation of Mr Masterson's firearms licence in itself."
The Appeal Panel accepted (Appeal Panel Decision [86]-[88]), that when it was seized on 4 July 2012, the stock on the Vektor Rifle was designed, and was able, to be telescopic. Thus, the Appeal Panel found that the Vector Rifle, fitted with such a stock, was a prohibited firearm within cl 11 of Sch 1 to the Act. Its reasons were as follows: "[85] In the present case, the appellant did not suggest that the stock itself was not intended by its design to operate on a telescopic basis. Rather, the appellant said that steps he had been taken meant that the stock could not operate in the manner for which it was conceived. [86] The problem with this submission is that by definition the stock had been designed to operate telescopically. This is exactly what the Tribunal found. [87] The modifications that had been made by the appellant may have prevented the telescopic action being readily engaged by reason of the pin and cardboard modifications at a particular point in time. However, the evidence which the Tribunal accepted and which was not challenged by the appellant (other than as to point in time) was that the modifications made by the appellant were not of such a nature so as to permanently modify the original design so that the stock was incapable of operating in a telescopic manner in any circumstance. [88] Whether or not a stock designed to operate telescopically could, once constructed, be modified in a manner so as to render the design of the stock different from its original design is unnecessary to decide. In the present case it is clear on the evidence that the stock which had been designed and originally constructed to operate telescopically had not been altered by the modifications made by the appellant in a manner which altered its design. [89] It follows that the Vektor rifle was a prohibited firearm within the meaning of the Firearms Act."
The plaintiff's written submissions in support of the third ground are, in effect, a series of complaints about the weight given by the Senior Member (and the Appeal Panel) to the evidence adduced by the Commissioner. Such complaints do not give rise to a question of law. In his oral submissions, the plaintiff argued that the emphasis in cl 11 of Sch 1 was on the present tense. He argued that, although the stock was designed to be telescopic, it could not be said, at the time of its seizure, that the stock is designed to be telescopic because he had altered that design feature. He submitted orally: "It might have been specifically designed to do that originally before I modified it, and at the time of the seizure it could not operate on a telescopic basis."
The question whether the stock fell within the definition in cl 11 was a question of fact or, at best, a question of mixed law and fact. It was, in my view, open to the Appeal Panel to leave undisturbed the Senior Member's Stock Finding. No question of law arises.

Ground 4: alleged error in construction of the plaintiff's Licence

This ground does not appear to add anything to either ground 3 or to grounds 5 and 6, which will be considered below.

Grounds 5 and 6: alleged error concerning findings regarding the plaintiff's attempts to make firearms parts using a 3-D printer

Senior Member Cahill made the following findings which are germane to grounds 5 and 6: 1. The plaintiff's attempts to make a magazine and a rail using a 3-D printer were not authorised under the Act ([245] of the First Tribunal Decision); and 2. The plaintiff's attempt to make a functioning magazine using the 3-D printer would have resulted in such a magazine being a prohibited weapon within cl 4(c) of Sch 1 of the Weapons Prohibition Act ([162]-[163], [240] and [243] of the First Tribunal Decision).
The reasons for (1) were set out in the following paragraphs from the First Tribunal Decision: [231] At the search, Mr Masterson told DSC [Detective Senior Constable] Iverach that he had brought the plastic printer to make a pistol grip as he been unable to bring one in from overseas, so he tried to make one. . . He later told DSC Ferris that he was going to use it to make his own magazines which he couldn't get in the country and a pistol grip for my other gun. He later told DSC Iverach that a magazine that he had made with the plastic printer is not to fit anything. 'It's just to see if I could make it. It's the first thing I made with it. I made a few test models.' Mr Masterson then referred to a broken magazine that he bought to get the measurements to make a 10 round or 15 rounder. Mr Masterson later told DSC Mouk, that the printer cannot make a functional magazine. I wanted to make some magazines for my gun, but they're not good enough to do it. In response to DSC Ferris, Mr Masterson said 'I was trying to make a rail for a gun right. See how it's bent like that? … You can't use stuff out of it. It's shit. It's worthless.' [232] Mr Masterson also said: '. . . Then I thought I'd try and make magazines which they won't get through customs which are legal in NSW….' [233] Under cross examination, Mr Masterson said he did not try to make a magazine, he did make a 70% scale model of a magazine case which could not be used for anything. When it was put to him that he had told the police officers on the day of the search that he had bought the 3-D printer to try [to] make his own magazines which he couldn't get into the country, Mr Masterson responded: 'No, well, I actually had extensive discussions with them about this on the day and they keep twisting my words. I tried to make, design something like a prototype which I could then have made in a shop. I mean the machine itself cannot make anything functional. It is a prototype. It's a very rough prototype machine.' . . . [235] Under cross examination Mr Masterson told the Tribunal that he believed he was entitled to make a magazine under his category AB licence. [236] Wherever there is a conflict between the 2 versions, the Tribunal prefers the evidence of Mr Masterson's comments to the search party, to that given in his subsequent statement and before the Tribunal. It is clear that Mr Masterson has had the opportunity to reflect on legislative requirements and to modify his statements through the several legal proceedings, since the search in July 2012. . . . [240] The Tribunal is also satisfied from Mr Masterson's comments at the time of the search, that Mr Masterson intended to make a functioning magazine. Mr Masterson intended to make his own magazines which he couldn't get in the country 'which are legal in New South Wales.' Initially however, he had only made test models which were not intended to function. . . . [243] The Tribunal is satisfied on the balance of probabilities, that Mr Masterson did attempt to make firearms parts - a magazine and a rail. Using the 3-D printer was part of that process. Mr Masterson's remarks indicate he was disappointed in the printer's incapacity. . . . [245] The Tribunal is satisfied that trying to make firearms parts such as the magazine and the rail, is outside the authority of Mr Masterson's category AB licence, set out under section 8 of the Firearms Act 1996. A firearms licensee may maintain their firearm, but this went beyond that scope."
The Appeal Panel found that the Senior Member was in error in finding (1). It considered that the Act did not prohibit the plaintiff from attempting to make those firearms parts for his firearms. The Appeal Panel's ultimate finding on the question was expressed as follows in [117] of the Appeal Panel Decision: "It follows that the mere fact the appellant attempted to manufacture parts for firearms which he held was not itself in contravention of the Firearms Act."
It is not necessary to express any view on the correctness, or otherwise, of the Appeal Panel's finding of error since it does not arise on the appeal. I note that the Commissioner sought to challenge this finding in the event that I were otherwise satisfied that the Appeal Panel Decision ought be set aside for error of law. Because of the view to which I have come, it is not necessary to address this matter further.
I turn to the Senior Member's finding in (2) above, which was upheld by the Appeal Panel, as is evident from the following passage from its reasons: "[118] However, in relation to the magazine, the Tribunal found: (1) The appellant was in possession of two parts which, if assembled with other parts, could form a magazine with a capacity of more than 15 rounds of ammunition: decision at [162]-[163]; . . . (3) The appellant 'wanted to make some magazine for (his) gun, but (the printer was) not good enough to do it': at [231]; (4) The appellant believed he was entitled to make a magazine under his category AB licence: at [235]. . . . [120] The Tribunal then found at [240] that 'Mr Masterson intended to make a functioning magazine' and at [243] that he was using the 3-D printer for this purpose. [121] These findings were open to the Tribunal on the evidence before it and are not shown to be wrong. [122] They support the conclusion that while the appellant had not succeeded in doing so and was therefore not in possession of a prohibited weapon, he was attempting to manufacture a magazine with a capacity of more than 10 rounds which would be a prohibited weapon for a person only holding a Category A and/ or Category B licence: see s 8 of the Firearms Act and s 7 and Sch1 cl 4(c) of the WP Act. [123] Accordingly, while the Tribunal was incorrect to find that the appellant could not manufacture any firearm parts, the Tribunal was correct to conclude the appellant was not entitled to manufacture a Ruger type magazine with a capacity of 15 rounds. More particularly, the Tribunal was entitled to have regard to the conduct of the appellant in trying to use the printer for impermissible purposes in determining whether it was in the public interest that the appellant's firearms licence be revoked."
The plaintiff in this Court sought to challenge finding (2) by the Appeal Panel. His challenge relied, at least in part, on allegations of misconduct by the police and the Commissioner's solicitor. None of the allegations was substantiated. However, the findings of the Tribunal and the Appeal Panel on this question were based on admissions made by the plaintiff in the course of the execution of the search warrant on his premises on 4 July 2012. Thus the basis for the Tribunal's and Appeal Panel's findings could not rationally be affected by any irregularity or illegality in the evidence adduced on behalf of the Commissioner, there being no basis to suggest that either the search warrant or its execution was other than legal.
The plaintiff has failed to make out either ground 5 or ground 6.

Ground 7: unreasonableness of the revocation of the Licence

The plaintiff submitted, in support of ground 7, that the Appeal Panel was "unreasonable in invoking the public interest test". He submitted that, even if the findings against him were taken at their highest, "it [his conduct reflected in the findings] would have no effect on the public interest".
The so-called "public interest" test is contained within cl 19 of the Firearms Regulation. The Commissioner was obliged to apply it, as was the Senior Member, who stood in the shoes of the original decision maker. As the Appeal Panel had set aside some of the findings of the Senior Member (referred to above) it, too, was obliged to consider, in light of its own findings, whether to confirm, vary or set aside the decision of the Senior Member to confirm the Commissioner's decision to revoke the plaintiff's Licence.
The question whether the plaintiff's Licence ought be revoked involved a broad evaluative judgment by the Appeal Panel (and the Senior Member), which included considerations of the public interest. The matters to be considered under the rubric of the public interest included the willingness of putative licence holders to abide by firearms legislation as well as any history of compliance or non-compliance.
The plaintiff has not identified any error in the process by which the Appeal Panel undertook that evaluation. Nor has the plaintiff established that the result is so irrational as to demonstrate error.

Ground 8: alleged unlawful conduct by the Commissioner, his servants and agents and his solicitor

The plaintiff, in support of the eighth ground, has made several unsubstantiated allegations against the Commissioner and his agents. These allegations ought not have been made. In some respects the allegations reveal the plaintiff's lack of familiarity with the preparation of witness statements. He accused Mr Mattson, the solicitor acting for the Commissioner, of misconduct when all the evidence showed was that Mr Mattson had drafted the statement of Detective Ferris, in accordance with instructions given by him. It is entirely orthodox for solicitors to draft or assist in drafting witness statements. Indeed, it is often preferable that solicitors do so in order to avoid inadmissible or prejudicial material being included.
I do not propose to address the plaintiff's in any detail since the plaintiff has not established that, even if any one of the allegations he has made had any substance, the findings of the Appeal Panel would have been different. For example, the plaintiff alleged that two pieces of a magazine found at his premises had been glued together by police and that this amounted to "tampering" with the evidence. It was common ground that the two pieces were separate when they were found when the search warrant was executed. At [165]-[172] of the First Tribunal Decision, the Senior Member found that, in that state, the two pieces could not amount to a magazine and that, accordingly, the plaintiff was not, on this basis, in possession of a prohibited weapon in contravention of the Weapons Prohibition Act.
For the reasons given above, the findings made against the plaintiff were largely based on uncontroverted facts or admissions made by him during the execution of the search warrant, which was filmed and sound-recorded. The video of the execution of the search warrant was before the Tribunal and the Appeal Panel. This ground does not, in any event, raise a question of law.

Whether leave to appeal ought be granted

None of the grounds has been made out. It is doubtful whether any raises a question of law. In these circumstances, I do not consider a grant of leave to be warranted.
Accordingly, it is not necessary to address the notice of contention filed by the Commissioner or to consider whether such a document is appropriate in a case such as the present.

Costs

The Commissioner accepted that costs ought follow the event. The plaintiff ultimately submitted that if he was successful, he ought obtain an order for costs (although he accepted that he had acted for himself). However the plaintiff submitted that, if the Commissioner was successful, he ought not be ordered to pay the Commissioner's costs of the proceedings. The plaintiff relied on the alleged misconduct by the Commissioner's representatives and agents. The allegations made by the plaintiff against the Commissioner have not been substantiated. I am unpersuaded that there is any reason to depart from the general rule that costs follow the event.

Orders

For the reasons set out above, I make the following orders: 1. Refuse leave to appeal against the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal. 2. Order the plaintiff to pay the defendant's costs of the proceedings.

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: 15 June 2018

Firearms Regulation 2006(NSW)cl 19

Firearms Act 1996(NSW)ss 3, 4, 7, 8, 11, 24, 36, 75(1)(c)

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (9)