Masterson v Commissioner of Police, New South Wales

NCAT Appeal Panel|2017-06-13

Introduction

The appellant was the holder of a category AB firearms licence issued under the Firearms Act, 1996 (Firearms Act).
The licence was issued on 12 December 2011 and was to expire on 3 February 2017. In his application for the licence, the appellant indicated that the genuine reasons were for sport/target shooting and recreational hunting/vermin control.
The respondent revoked the licence on 10 July 2014. This action was taken following the execution of a search warrant at the appellant's address in July 2012, the prosecution and conviction of the appellant for various offences under the firearms legislation in the Local Court of New South Wales and the subsequent quashing of those convictions on 26 June 2014 by the District Court of New South Wales.
The appellant applied to the Tribunal for review of the respondent's decision to revoke his license. The appellant was unsuccessful in this application and on 11 January 2017 the Tribunal affirmed the decision of the respondent. In doing so, the Tribunal published reasons for decision in Masterson v Commissioner of Police [2017] NSWCATAD 17.
The appellant appeals the decision of the Tribunal.

Grounds of appeal and submissions

The appellant filed a Notice of Appeal dated 8 February 2017.
The appellant raises ten grounds of appeal. The Notice of Appeal by its terms does not seek leave to appeal. That is, the appellant only sought to challenge the Tribunal's decision on the basis of errors of law. However during the course of hearing leave to appeal was sought in respect of some grounds.
The appellant said that the Tribunal should reinstate his firearm licence and that an award for costs should be made pursuant to s60(3) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
The appellant provided written and oral submissions in support of the appeal.

Grounds 1-4

Grounds 1-4 were that the Tribunal erred: 1. in finding there had been any breach by the appellant of conditions of his firearms licence in any of his activities involving the 3-D printer; 2. in finding, implicitly, that the appellant had in a way acted unlawfully in any of his activities involving use of the 3-D printer; 3. in concluding at [244] that the appellant had attempted to make "firearms" with the 3-D printer; 4. in failing to identify what law the appellant was said to have breached by attempting to make firearm parts (the magazine and rail) and by finding that conduct to have been contrary to law.
The appellant submitted that the Tribunal was required to go through a fact finding process of the type explained by Gleeson CJ in Greiner v ICAC (1992) 28 NSWLR 125. The appellant said neither the Tribunal nor the respondent made any attempt to identify the offence said to have been committed by using the 3-D printer.
The appellant referred to the definitions of "firearm" and "firearm part" found in the Firearms Act and said that the items the Tribunal found to have been manufactured did not meet the definition of "firearm" within the meaning of the Act nor, in the absence of evidence to establish what was made by the printer, could the items be described as having been designed or reasonably capable of forming part of a firearm as required by the definition of "firearm part".
The appellant then submitted that the conclusion of the Tribunal that he had somehow acted beyond the authority of his license in contravention of s7 of the Firearms Act was incorrect. The appellant submitted that s 7 concerned the possession or use of firearms, not the manufacture or attempted manufacture of firearms parts. Similarly, s 8 of the Firearms Act concerns the possession and use for the purpose being the genuine reason for possessing or using the firearm and s 9 confers additional authority to take the firearm to a license firearms dealer or to the police for the specified purposes.
Consequently, the appellant says the Tribunal erred in law in determining that the use of the 3-D printer in some way breached the authority granted by the license.
Otherwise, the appellant says neither the respondent in its original decision or the Tribunal on review identified any provisions of the Firearms Act nor any other Act that had been contravened by the appellant's use of the 3-D printer which the Tribunal found occurred. In this regard the appellant referred to s 50A of the Firearms Act and said that section would not operate to render any attempted manufacture of firearms parts an offence. This was because s 50A "is concerned exclusively with the manufacturing of firearms and not that of firearm parts. It quite clearly is not engaged in the context of the facts found by the Tribunal below".
Consequently, no properly instructed jury could find the appellant to have committed any offence in his activities with the 3-D printer.
In oral submissions, the appellant's Counsel accepted that the fact the appellant had been acquitted of various offence did not mean that the respondent and/or the Tribunal on review could not come to a conclusion that the appellant had engaged in contravening conduct. Rather, Counsel for the appellant submitted that what was required was evidence to establish that the particular items were or had been designed to be firearm parts.

Ground 5

Ground 5 was not pressed. However, the appellant submitted that the Appeal Panel should view various video footage concerning the execution of a search warrant "as it is central to an understanding of the appellant's attack on the Tribunal's decision below concerning the state of the Vektor Rifle when it was seized on 4 July 2012".

Ground 6

Ground 6 was that the Tribunal erred in finding (at [270]) that the Vektor Rifle had a stock which was specifically designed to be telescopic and that the rifle's specifications contravened the Firearms Act.
The appellant provided the following written submissions on this ground: There was a factual controversy before the Tribunal which was of central importance to the Vektor Rifle question. Ultimately the question of whether the appellant had contravened section 7 of the Firearms Act came to be determined by whether the rifle had a stock that was "specifically designed so as … to operate on a … telescopic basis". That question, in turn, came to be determined on the basis of whether the stock, the condition in which it was found when the rifle was seized, could readily be moved in and out, so as to shorten and lengthen the stock. The evidence demonstrated that, in order to move the stock in that fashion, the "pin" that locked it in the position needed to be pulled in a downward motion. The evidence also established, however, that a cantilever mechanism, which would ordinarily be fitted to the pin to enable it readily to be disengaged from the stock and thereby allow the movement of the stock itself, had been removed. It was ultimately, then, a question of whether in the absence of that lever, the pin could nevertheless be readily disengaged. The answer to that question was pivotal. It was also the subject of directly conflicting evidence. The appellant maintained that not only had he removed the lever but he had also packed cardboard around the pin to prevent its being able to be moved. DSC Ferris maintained, on the other hand, that DSC Iverach, with whom he conducted the search of the appellant's premises when the rifle was seized, had demonstrated to him, outside the appellant's premises immediately following the rifle's seizure, that he could disengage the pin and lengthen and shorten the stock.
The appellant then submitted that, because the Tribunal found at [229] that "prior to Mr Masterson adjusting it" the stock was specifically designed to operate on a telescopic basis, the Tribunal necessarily accepted that the adjustments claimed to have been made by the appellant were in fact made. The appellant then referred to the conflict of evidence, including what happened outside the appellant's premises immediately following the rifle's seizure, and submitted this conflict had not been resolved by the Tribunal. In short, the appellant submitted that even if the stock had initially been designed to operate on a telescopic basis, if the evidence of the appellant and the appellant's expert Mr Smith were accepted, the firearm would not "still" have been a prohibited firearm because of the modifications made.
In oral submissions, the appellant said there was no evidence that the stock had originally been fitted to the firearm when it was in a state so that the stock could operate telescopically. The appellant referred to Sch 1 cl 11 of the Firearms Act and said that the offence under s 7 arises from possession of a prohibited firearm. The fact the appellant may have modified the stock to prevent it operating telescopically did not mean that it had been fitted to the firearm in an unmodified state and therefore the evidence did not establish the appellant had at any time been in possession of a prohibited firearm.
The appellant said that the Tribunal failing to resolve this conflict of evidence constituted an error of law for which there is a right of appeal. Alternatively, the Appeal Panel should give leave to appeal.
Aside from the submission that the Tribunal had failed to resolve the conflict of evidence, no other reasons were advanced as to why leave should be granted in the present case.

Ground 7

Ground 7 was that the Tribunal erred in treating the irrelevant consideration of the absence of character references of the appellant as relevant and, in doing so, impermissibly treated the appellant as bearing an onus to prove good character.
The appellant submitted the Tribunal impermissibly treated the absence of character evidence "as militating against a finding that it remained in the public interest that the appellant retain his license". Further, implicitly this approach treated the appellant "as bearing some onus positively to establish good character".
These findings were contrary to the principle which the Tribunal recognised at [17] that neither party bore an onus in proceedings before her. Consequently, the departure at [283] constitutes an error.

Ground 8

Ground 8 was that Tribunal was in error in receiving inadmissible evidence or evidence which had been illegally obtained being evidence set out in the statement of DSC Ferris.
Having recounted that there was no dispute that certain telephone intercept material could not be placed before or considered by the Tribunal in light of s63 of the Telecommunications (Interception and Access) Act, 1979 (Cwth), the appellant noted that "(r)egrettably, the Facts Sheet was not redacted" nor was the telephone intercept material redacted from where it appeared in the s58 documents. The appellant also noted that the respondent stated hid position to be that he did not read or rely on the particular paragraphs from the Fact Sheet, the problem being that the material still appeared on the papers before the Tribunal.
The appellant submitted that an objection was taken "but no ruling appears to have been made in respect of that objection". The appellant also submits that a reading of what the Tribunal said at [20] demonstrates a misunderstanding of the basis of the objection, the substance of the objection being that it was impermissible for the material to be used.
While the appellant acknowledge that the Tribunal "did not regard there to be anything unlawful per se in the appellant's relationship and dealings with Mr Francis" it is impossible to know whether this had any subconscious effect on the Tribunal's decision in considering what was in the public interest. Further, that the fact the material was before the Tribunal "gives strong cause for concern that the material was both unlawfully before the Tribunal and that it played a part in the ultimate determination".
Therefore, the appellant submits, this ground of appeal is made out.
In oral submissions, the appellant said that the proper course for the Tribunal to have adopted in these circumstances was to abort the hearing. In making this submission, appellant's Counsel was unable to identify any authority to support the proposition that the hearing should have been aborted. However, his Counsel referred to the legislation and reiterated that the Appeal Panel would not be comfortably satisfied that the receipt of this material did not prejudice the outcome of the hearing.

Ground 9

By ground 9 the appellant asserted that the Tribunal applied a wrong test in asking whether it could be "certain" that the appellant would operate within the scope of the legislation and his authorities in the future.
The appellant referred to [281] of the decision and said this was the incorrect test. Rather, the appellant submitted the correct test to apply was that set out at [154], being a decision of Deputy President Hennessy, also referred to at [286], namely that the Tribunal "must be satisfied there is virtually no risk to public safety".
The appellant said that the test of certainty could never be satisfied and that the application of such a test would render devoid of content any discretion in making decisions concerning what was in the public interest.
In oral submissions, the appellant also referred to the decision of the High Court in O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210. The appellant then said that the matters raised in Grounds 1-4 and Ground 6 could not be separated from the public interest considerations. Consequently, if these grounds were upheld there would be no proper basis to revoke the appellant's licence on the basis it was not in the public interest to allow the appellant to continue to hold the licence.

Ground 10

Lastly, the appellant submitted that the Tribunal's finding that it was not in the public interest for the appellant to continue to hold a firearms licence was legally unreasonable.
The appellant acknowledge that this ground could only be "maintained on the basis … that one or more of the other grounds is upheld".
In reply, the respondent referred to the statutory regime and submitted that the legislation was "emphatically concerned with protecting the public, and 'making decisions that are consistent with the need to reduce any risk to a minimum'". The respondent referred to various decisions of the Tribunal, and its predecessor the Administrative Decisions Tribunal, including: 1. Petas v Commissioner of Police, NSW Police [2013] NSWADT 137; 2. Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; 3. Morris V The Commissioner of Police [2002] NSWADT 223; and 4. Smith v Commissioner of Police & Anor [2014] NSWCATAD 184.
The respondent submitted that the outcome of criminal proceedings was not determinative of the issue of whether or not the licence should be revoked on public interest grounds.
In relation to the use of the 3-D printer, the respondent submitted that the appellant did not dispute the Tribunal's factual findings that he attempted to make the magazine and rail, nor that he intended to make a functioning magazine in circumstances where "he couldn't get it into the country". The respondent then said that the appellant's licence conferred a limited authority which did not authorise him to manufacture or attempted manufacture parts for firearms. In this regard the respondent referred to s51CA of the Firearms Act, it being noted that this section was inserted into the Firearms Act in 2013
Consequently, the respondent submitted Grounds 1-4 should be rejected.
In relation to ground 6, the finding that the stock was designed to be telescopic, the respondent made the following submissions: 1. The stock could in fact be moved and, at [227], the Tribunal accepted the evidence of DCS Ferris in this regard; 2. This evidence was consistent with the evidence of Mr Wilson, the respondent's expert; 3. The evidence of Mr Smith was not inconsistent because his evidence was to the effect that if the pin was released, the stock would be telescopic; 4. Even if the appellant's claims were accepted, his evidence that he had removed the lever and packed cardboard around the pin indicated that prior to doing so he was in possession of a prohibited firearm.
Having regard to the fact there was evidence to support the Tribunal's findings, no error of law has been demonstrated. In this regard the respondent referred to various decisions concerning whether or not an error in evaluating evidence can give rise to an error of law.
In relation to Ground 7, namely the Tribunal noting the absence of good character evidence is a relevant factor in determining the question of the public interest, the respondent submitted that no legal error was made. The respondent also submitted that the Tribunal correctly noted that neither party bore an onus of proof in the proceedings.
Further, the respondent says the appellant raised the issue of his character evidence in the Tribunal and the Tribunal was entitled to comment upon the absence of any corroborating evidence. Further, the concept of public interest and the determination to be made entitled the Tribunal to have regard to the appellant's character and personal integrity.
Lastly, the respondent submitted that the Tribunal at [283] did not treat the absence of character evidence as a reason for or determinative of the issue of whether it was not in the public interest for the appellant to continue to hold a license. Rather, the Tribunal did no more than "identify a matter that may shed light on the appellant's standing in the community". The Tribunal did not proceed on the basis there was a positive onus placed on the appellant to adduce evidence of good character.
In relation to Ground 8, the respondent said that it was clear from the decision that the respondent did not rely on the telephone intercept material. More particularly, there was no evidence to support the assertion nor was there a proper basis to conclude that consciously or otherwise the decision of the Tribunal was any way affected by this material or that the Tribunal relied on that material in reaching its decision.
In relation to Grounds 9 and 10 the respondent makes the following submissions: 1. The Tribunal identified the correct test namely that it must be satisfied "there is virtually no risk" to public safety; 2. The Tribunal's finding at [281] was, on a fair reading, a finding that there was a real risk the appellant would not comply with the conditions of his license because he was not in fact clear as to the scope of his authority under the licence and showed ignorance in relation to the requirements of the Firearms Act; 3. in any event, the appellant's conduct in respect of the receiver and the Vector rifle and its stock, his attitude to the licensing regime as recorded in public statements, in his conduct in acting outside the limited authority granted to him in connection with possession of firearms, the lack of any evidence to suggest the appellant would conduct himself differently in the future and the absence of any economic reason for the appellant to have a firearm, other than for recreation were all factors which entitled the Tribunal to reach its conclusion that it was in the public interest that the licence be revoked.
In addition to this material, the respondent contended that the decision of the Tribunal was otherwise correct because the Tribunal should have found: 1. that the metal item was in fact a receiver within the meaning of the Firearms Act, it was not registered and therefore its possession was not authorised; 2. that the appellant gave a magazine to Mr Francis, an unlicensed individual, in contravention of s50B of the Firearms Act and the Tribunal failed to have regard to the respondent's submission to this effect and did not refer to the respondent's submission in its reasons; and 3. that the respondent was in possession of a prohibited weapon, namely the Ruger Magazine with a capacity greater than 15 rounds of ammunition.
In relation to this last contention, the appellant accepted that the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in Jacob v R [2014] NSWCCA 65 bound the Appeal Panel and, having regard to the decision of the majority in Jacob, the respondent's third contention would fail.
In relation to the question of leave to appeal, the respondent submitted that even if there was an arguable case, there is was no blatant or important error of fact which would justify the grant of leave to appeal. There was nothing unorthodox about the Tribunal's approach to making its decision and no other basis to support the grant of leave.
As to the challenge to the evidence of DCS Ferris, the Tribunal adequately dealt with these matters by identifying the issues raised. The Tribunal was entitled to accept the evidence of DCS Ferris as it did at [227] and no error is shown.
In relation to the making of firearm parts, the Tribunal made findings at [243] and [245] and then analyse this conduct to determine whether it was contrary to the public interest for the appellant to retain his license. While s 50A (which relates to unauthorised manufacture of firearms) may not have been referred to, the conclusion of the Tribunal was correct and no error is disclosed.
In relation to the Vektor rifle and its stock, the respondent noted that the appellant could have given evidence as to the state of the stock at various times leading up to when it was fitted to the Vektor rifle. As there is no onus of proof, the absence of this evidence was a matter which the Tribunal could take account of. Further, and in any event, while the appellant says the stock had been modified so it could not be readily moved in and out, the fact remains that it was found by the Tribunal to be specifically designed to operate on a telescopic basis. In circumstances where the stock had in fact been fitted to the Vektor rifle the conclusions at [229] and [230] concerning the appellant being in possession of a prohibited firearm was reasonably open to the Tribunal.
In reply, the appellant initially submitted that the principles set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 confined too narrowly the circumstances in which leave to appeal should ordinarily be granted. The appellant said the similarity of proceedings before the Appeal Panel and those seeking to appeal a judicial decision were misplaced and that the discretion to grant leave in cases such as the present should be construed liberally.
Secondly, the Tribunal committed jurisdiction error of the type identified by McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82], namely the Tribunal failed to take into account the fact that DSC Ferris had failed to mention in earlier statements that Detective Iverach had been able to move the stock in and out when the rifle was examined outside the appellant's premises. Further, whether or not a question of law, leave should be granted as the Tribunal failed to resolve the issue of credibility of DSC Ferris, a matter dealt with in the appellant's submissions to the Tribunal at first instance.
Otherwise, the appellant restated earlier submissions in relation to the "making firearms parts", "Vektor rifle" and "Intercept material" issues and opposed the respondent raising the "Giving magazine to Francis" issue.

Consideration

This appeal is brought pursuant to s 80 of the NCAT Act.
There is a right of appeal on a question of law. Otherwise leave is required. The principles applicable to the grant of leave were set out in the decision of the Appeal Panel in Collins v Urban.
The issue for determination is whether the Tribunal was correct to affirm the decision of the respondent to revoke the appellant's category AB firearms licence issued under the Firearms Act.
The decision of the respondent was made by letter dated 10 July 2014. An application was made for internal review which was unsuccessful. Subsequently, the appellant lodged an application for review with the Tribunal. The right to do so is provided by s75(1)(c) of the Firearms Act. The Tribunal was required to determine the correct and preferable decision on the material then before it: s63 Administrative Decisions Review Act, 1997(NSW).
Section 24(2) of the Firearms Act provides: (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
Clause 19 of the Firearms Regulation 2006, regulation applicable at the time of the decision, provides: 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.
The Tribunal determined that the correct and preferable decision was that the licence be revoked. It reached this decision on two bases.
First, the Tribunal determined that the grounds for revocation in s 24(2)(b)(ii) had been established because the appellant possessed a prohibited firearm, namely the Vektor rifle which had fitted to it a stock designed to operate on a folding or telescopic basis. Secondly, the Tribunal determined that it was not in the public interest for the appellant to continue to hold a license and the licence should be revoked under cl 19 of Sch 1 of the Firearms Act.
It is convenient to deal with the public interest ground first. In doing so, it is necessary to identify the relevant matters about which the respondent, or the Tribunal on review, must be satisfied in reaching a conclusion "that it is not in the public interest for the (appellant) to continue to hold a license".
The appellant accepted that the statement of the majority of the High Court in O'Sullivan applies in the present case. There, at 216, when considering the Liquor Act, 1982 (NSW), the majority said: The public interest considerations which may ground an objection under s45(1)(c) are, in terms, confined to considerations "other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3)". But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically important a discretionary value judgement to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitively extraneous to any objects the legislature could have had in view".
In the present case, the public interest test in cl 19 is not, in terms, confined. Rather, it is a separate and additional ground or revocation to that found in s24(2)(a)-(c1). That is not to say that the matters in those sections, if established, are not relevant considerations in determining what is in the public interest. However, the absence of those factors does not of itself lead to the result that the respondent, or the Tribunal on review, could not be satisfied that it is in the public interest for a licence to be revoked. Rather, as the High Court said in O'Sullivan at 217, after quoting from the decision of Dixon J as he then was in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 (which we have set out above), there is a general discretion to revoke a licence by reference to public interest considerations.
The appellant also accepted that the test to be applied in considering the public interest was that set out in Ward [28], namely that "the Tribunal must be satisfied that there is virtually no risk". In this context Deputy President Hennessy noted at [27] that the objects of the Firearms Act "confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety".
It is in this context that the Appeal Panel must consider whether the Tribunal was in error in resolving the public interest question against the appellant and affirming the decision of the respondent upon review.
The appellant pointed to a number of matters said to constitute errors on this aspect of the appeal.
Ground 6 related to the Tribunal's conclusion that the appellant was in possession of a prohibited firearm because the Vektor rifle was fitted with a stock specifically designed to operate on a telescopic basis.
The appellant's contention was that the Tribunal failed to resolve a conflict in the evidence concerning steps taken by the appellant to alter the telescopic operation of the stock by inserting cardboard and making alterations to the pin so as to prevent it from operating on a lever basis to permit ready telescopic action. The appellant said that at the time the firearm was seized, the telescopic action could not be mobilised by reason of the changes made. The fact that the respondent or its expert was subsequently able to operate the stock in a telescopic manner did not mean there was a contravention by the appellant at the point in time when the Vektor rifle was seized. In the absence of evidence that the stock when fitted by the appellant to the Vektor rifle could operate in a telescopic manner, the appellant said there was no basis for the Tribunal to conclude that the appellant was at any relevant time in possession of a prohibited firearm.
Section 8 of the Firearms Act expressly excludes from the authority granted in connection with Category A or Category B licenses the possession and use of prohibited firearms. Clause 11 of Sch 1 of the Firearms Act relevantly defines a prohibited firearm as: 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 word "designed" is not defined in the Firearms Act.
In the Macquarie Dictionary (Revised 3rd Edition) the word design is defined in the following terms: To prepare the preliminary sketch or the plans for, to plan or fashion artistically or skilfully, to intend for a definite purpose.
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.
The problem with this submission is that by definition the stock had been designed to operate telescopically. This is exactly what the Tribunal found.
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.
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.
It follows that the Vektor rifle was a prohibited firearm within the meaning of the Firearms Act.
Further, the objects of the Firearms Act state there is a need to ensure public safety by imposing strict controls on the possession and use of firearms and confirms that an authority to use and possess firearms is a privilege. The fitment of a stock of the present type to a firearm to which a person is otherwise entitled to possess and use under a Category A or Category B licence, even in a modified state, is a matter which the Tribunal was entitled to consider in determining the public interest question. The fact the stock could be altered back to a state where it could operate telescopically is also a relevant fact.
In these circumstances it could not be said the Tribunal's discretion miscarried. This is because these matters, by themselves, were sufficient for the Tribunal to reach the conclusion that the appellant's licence should be revoked and that the decision of the respondent should be affirmed.
While unnecessary to do so, we should deal with the other grounds of appeal.
Grounds 1-4 relate to the 3-D printer in the Tribunal's conclusion that the authority granted under an AB licence did not permit the manufacture of firearm parts. The appellant submitted he was entitled to make parts for his firearms. In effect he said that the entitlement to possess a firearm under the licence granted also entitled him to repair, maintain and/or manufacture replacement parts for his firearms. Further, and alternatively, the appellant said that his use of 3-D printer could not be categorised as manufacturing firearm parts in any event because the items identified in the evidence were scale models and/or were not functional due to incompleteness and/or the plastic used for printing being of inadequate type or strength to produce a functioning part.
At [272] the Tribunal made the following findings: The Tribunal is also satisfied that Mr Masterson did intend to make firearms parts, a pistol grip, a rail, and magazines for his firearms, although the printer was not good enough to do it. The Tribunal is satisfied that making firearms parts 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 Respondent submitted that it would be against public interest for Mr Masterson to retain his firearms licence in these circumstances
The Tribunal concluded at [280] that the making of firearm parts was not authorised and "effectively undermines the objects of the Firearms Act … in promoting public safety through the strict control and possession of firearms".
The Tribunal then said at [281]: 281 Mr Masterson said during the search "So you're going to try and get me for manufacturing something, are you? ". He also said in relation to the broken magazine "I'm not really in possession of that" indicating again a certain understanding of legislative prohibitions. This indicates, in the Tribunal's view, that Mr Masterson was aware that he was not authorised to make firearms. However, Mr Masterson did not appear to be clear about the scope of his authority as an AB licence holder during cross examination. In the Tribunal's view, this demonstrates a combination of educated wilfulness and ignorance on Mr Masterson's part in relation to firearms regulation. Because of this, the Tribunal cannot be certain that Mr Masterson would operate within the scope of the legislation and his authorities in the future. 282 While Mr Lynch may have expressed some remorse or contrition about his contraventions of firearms storage requirements, Mr Masterson has defended himself adamantly. He has denied breaching firearms legislation. He has not suggested that he might behave differently in the future.
In our view, the conclusion which the Tribunal reached at [243] that the appellant had attempted to manufacture firearm parts was a conclusion available to it on the evidence. It is clear from the evidence recorded by the Tribunal, for example at [231]-[232], that the appellant had in fact attempted to manufacture for his "personal use" various parts for his firearms. No error is shown in this regard.
However, the real issue raised on appeal in relation to this matter is whether the attempted manufacture of firearm parts for the appellant's firearms went beyond the scope of the authority granted to the appellant pursuant to s 8 of the Firearms Act in respect of his AB licence as found by the Tribunal at [245].
Section 8 does not, by its terms, expressly authorise the holder of a Category A or Category B licence to manufacture parts for his firearms. The authority conferred for each category as specified in ss8(1) is as follows: The licensee is authorised to possess or use a registered firearm of the kind to which the license applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
Logically, the authority to the use of a firearm, which has moving parts and which might become dirty during the course of its operation would include cleaning and maintenance of the firearm to permit its use. Arguably, that might include the repair of any parts damaged in the use of the firearm. This, the Tribunal appears to have accepted at [245].
The question is whether the legislation, on its proper construction, extended to permit the holder of a licence to manufacture firearm parts or whether the manufacturer of firearm parts is otherwise unlawful.
The starting point in determining this issue is that an appropriate license is required to possess firearm parts as well as firearms themselves.
The Firearms Act defines firearms and firearm parts in the following terms: 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.
Sections 7 and 7A, create offences in relation to unauthorised possession and use of prohibited weapons or pistols (s 7) and unauthorised possession or use of firearms generally (s 7A). On their face, they appear be limited to firearms and not firearm parts. However, s 6(3) which has as its introductory words "A person is not guilty of an offence under section 7 or 7A only because of possessing a firearm or firearm part" except as provided in ss 6(3)(a)-(c), suggests that unauthorised possession includes unauthorised possession of firearm parts.
It would follow that the mere possession of firearm parts is authorised provided the person in possession has a licence "for the kind of firearm" to which the firearm part relates: see terms of authority conferred by s 8.
This is subject to the fact the authority conferred is further limited to possession or use of "a registered firearm". In this regard while only firearms and not firearm parts generally are required to be registered (see Part 3 and the offence under s 36 of the Firearms Act), firearm parts being frames and receivers are required to be registered (see s93 Firearms Act).
It would follow that generally possession of firearm parts for firearms of a kind which the appellant was entitled to use and possess was not unlawful.
Manufacture of firearms is regulated by s 50A of the Firearms Act which provides: 50A Unauthorised manufacture of firearms (1) A person who manufactures a firearm is guilty of an offence under this subsection unless the person is authorised by a licence or permit to manufacture the firearm. Maximum penalty: imprisonment for 10 years. (2) A person who manufactures a pistol or prohibited firearm is guilty of an offence under this subsection unless the person is authorised by a licence or permit to manufacture the pistol or prohibited firearm. Maximum penalty: imprisonment for 20 years. (3) Without limiting the operation of subsection (1) or (2), those subsections apply to a person regardless of whether the firearm concerned was manufactured in the course of carrying on a business. (4) If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of an offence under subsection (1), and the accused is liable to punishment accordingly. (5) In this section: manufacture a firearm includes assemble a firearm from firearm parts.
As provided in s50A(5), manufacturer of a firearm includes the assembly of a firearm from firearm parts. However, the section does not refer to the manufacture of firearms parts.
The only licence type which expressly authorises the manufacture of firearms is a firearms dealer license: see s 8(1) Firearms Act. It provides to a person carrying on the business of a firearm dealer, a club armourer or a theatrical armourer (as the case may be) an authority "to possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test… any firearm ".
Again, there is no reference to manufacture of firearm parts. However, a person who does not hold a licence or permit relating to the kind of firearm to which the part relates could not manufacture a firearm part unless they were the holder of a relevant licence or permit issued under the Firearms Act, because, once manufactured, that person would be in possession of a firearm part in contravention of the Firearms Act due to the operation of ss 6, 7 and 7A.
On the other hand, there is no reason to conclude that the Firearms Act otherwise prohibits the manufacture, by a holder of a licence, of firearm parts (as opposed to a firearm) for firearms of a type for which the that licence holder is authorised to use or possess.
In the absence of an express prohibition: 1. the distinction between firearms and firearms parts in the Firearms Act, 2. what is included in the definition of "manufacturing" a firearm in s50A; and 3. the fact that a person who is granted a licence would, as a consequence of possessing and using a firearm, ordinarily be required to the repair and maintain any firearms for safe use, an activity that may involve replacement of parts over time, leads us to conclude the Tribunal was in error in deciding that the holder of a Category A or Category B licence was not entitled to manufacture parts for the repair or maintenance of firearms which that person was entitled to use and possess.
Rather, in our view, the legislation prohibits: 1. the manufacture of a firearm, namely "a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive" or a frame or receiver (both of which must be registered as a firearm by reason of s 93 of the Firearms Act) unless the manufacturer is the holder of a Dealers firearms licence or permit allowing them to do so; and 2. the manufacture of a firearm part (not being a frame or receiver) unless: 1. the person is manufacturing a part for a firearm of a kind for which they are authorised to possess and use; or 2. the person holds a Dealers firearms licence or permit allowing them to do so.
Our view is also supported by the more recent amendment to the Firearms Act, s 50AA. That section provides: 50AA Acquisition of firearm parts (1) A person must not acquire a firearm part unless the person: (a) is the holder of a licence or permit for the kind of firearm to which the firearm part relates, or (b) is authorised by a permit to acquire the firearm part. Maximum penalty: imprisonment for 5 years.
That is, a person may acquire a firearm part, but only if they have a licence or permit for the kind of firearm to which the firearm part relates.
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.
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]; 2. parts were missing and, even if the two plastic parts were glued on together, those two parts did not meet the description of a prohibited weapon found in Sch 1 (4) of the WP Act: at [169]-[172]; 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].
In doing so, the Tribunal preferred the evidence given by the respondent's witnesses as to what the appellant said at the time of the search in preference to the appellant's subsequent statement and evidence before the Tribunal. In this regard the Tribunal concluded at [236]: 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.
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.
These findings were open to the Tribunal on the evidence before it and are not shown to be wrong.
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.
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.
In relation to ground 7, Mr Masterson put his character and criminal history in issue: see appellant's submission to the Tribunal recorded at [89]. Having found the appellant had breached his obligations under the Firearms Act, the Tribunal was entitled to have regard to the lack of any references when deciding what weight should be given to this evidence.
Accordingly, no error is established.
In relation to Ground 8, we do not accept that the Tribunal was unable to proceed with hearing the application in circumstances where the parties had erroneously allowed inadmissible material to be placed in the bundle prepared for hearing.
No authority was provided to support a proposition that the hearing should have been aborted and the Tribunal reconstituted. 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.
Accordingly, this ground of challenge fails.
As to ground 9, we do not accept that the Tribunal applied a wrong test.
The appellant conceded in submissions (as we recorded above) that the appropriate test is as recorded in paragraphs [154], namely that the Tribunal "must be satisfied there is virtually no risk to public safety". Neither party suggested the test enunciated by Deputy President Hennessy was wrong.
However, the appellant says that the use of the word "certain" in paragraph [281] demonstrates error.
This statement was in relation to a finding of fact, namely the Tribunal was not "certain Mr Masterson would operate within the scope of the legislation and his authorities in the future". Put another way, the Tribunal had a doubt based on the evidence before it that Mr Masterson would comply with the requirements of the relevant legislation.
In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a license on public interest ground. As stated above, the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary.
After reaching this conclusion, it is clear from what was said at [282]-[286] that the Tribunal was not satisfied that "there was virtually no risk to the public" having regard to the matters identified, particularly the breaches of the legislation and the appellant's denial he had contravened the applicable conditions.
It follows that no error in application of the applicable test has been demonstrated and this ground fails.
The appellant said ground 10 could only be sustained if he succeeded on one or more of the other grounds of appeal.
As the appellant has been unsuccessful, the appeal should be dismissed.

Orders

The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is dismissed. 2. Any application for costs (Costs Application) is to be made within 7 days from the date of publication of these reasons, supported by any submissions and evidence in support; 3. Any submissions and evidence in response to the Costs Application is to be filed and served within 14 days from the date of publication of these reasons; 4. Any submissions in reply by the applicant for costs are to be filed and served within 21 days from the date of publication of these reasons.

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: 31 October 2017

Firearms Regulation 2006(NSW)

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