McGrath v Commissioner of Police, NSW Police Force

(Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2018/000363205 Publication restriction: Nil

Reasons for decision

1. The applicant Mr Nathan Wayne McGrath on 26 November 2018 applied to this tribunal for review of a decision by the respondent on 10 May 2018 to revoke his category AB firearms licence. The licence had initially been issued on 7 December 2004 for the reason of recreational hunting and vermin control and had been renewed on 27 January 2015 to expire on 27 January 2020. The revocation decision was affirmed by an internal review on 4 September 2018.
2. On 28 March 2012, police inspected the applicant's firearms safe keeping arrangements at 45 *** Road, Bringelly, New South Wales, and confirmed that they satisfied the applicable standards. In May 2013, the applicant was convicted of exceeding the speed limit by over 45 km/h and driving dangerously during a police pursuit. He was fined $1500 and disqualified from driving for six months on the first charge, and for the second was sentenced to 9 months' imprisonment which was suspended on the applicant's entering into a nine-month bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, and he was disqualified from driving for 12 months.
3. On 14 November 2017, police attended at the applicant's home in response to a report of an oral argument concerning the applicant's taking an unknown illegal substance. The putative victim, although upset, denied that any assault had occurred. Having ascertained that the applicant had three registered firearms that were to be kept at his parents' house, across the road from his house, police informed the applicant that his firearms would be impounded for a period of 28 days under domestic violence legislation (Crimes (Domestic and Personal Violence) Act 2007, Law Enforcement (Powers and Responsibilities) Act 2002).
4. When subsequently questioned by police in relation to his firearms, the applicant initially was noncommittal about whether there were any firearms in the house, but following further questioning police located and impounded a Ruger M77 Mark 2 .223 bolt-action rifle, which was unsecured and placed behind a large entertainment console in a firearms bag. Having been arrested and cautioned, the applicant told police that he had returned home from his farm near Oberon earlier in the day and had hidden the rifle when the police arrived at his parents' house. The victim later told police that the applicant often had the firearm unsecured in the house and had recently been found to have a firearm under his bed. The applicant was unable to locate the keys to his safe storage facility and police had to arrange for it to be broken into by a locksmith in order for his firearm to be seized.
5. On 15 November 2017, the respondent served the applicant with a notice of suspension of licence or permit in respect of his firearms licence. On 8 May 2018, he was charged with failing to keep a firearm safely - not being a prohibited firearm/pistol. The charge was found proven and the applicant entered into a good behaviour bond for 12 months. An interim apprehended violence order that had been issued against him was revoked.
6. On 10 May 2018, the respondent wrote to the applicant informing him that a decision had been made to revoke his category AB firearms licence, and the licence was duly revoked on 16 May 2018.

Applicable legislation

1. The general requirement for the safe storage of firearms is contained in s 39 of the Firearms Act: 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. Note. Reference to a pistol includes a prohibited pistol. (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
2. Section 24 contains the respondent's power to revoke licences and permits: 24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if: (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (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….

The evidence

1. The respondent called Senior Constable Scott Gaal who, in his evidence given by audio-visual link, adopted his statement dated 1 May 2019 in which he related inter alia how on 14 November 2017, police received an alert at 2:29 pm in relation to a domestic dispute at 15 *** Road, Bringelly, between the applicant and his partner Roxanne Reicher. The alert had been received from Ms Reicher's sister, Justine, who contacted police again approximately an hour later to report that Roxanne had called from a chicken coop and informed her that the applicant had weapons and drugs under the bed and had thrown her across the room. The chicken shed was at 45 *** Road, Bringelly, and the location of the dispute was at 15 *** Road. The applicant and Roxanne lived together at that location.
2. The police officers responding to the call located Ms Reicher, who denied that any assault had occurred but requested their assistance with obtaining her belongings from the property at 15 *** Road. It was established that the applicant had three firearms registered to his name, but the safe storage address for them was 45 *** Road, his parents' house across the street. The applicant was informed that his firearms would be impounded for a period of 28 days under the Crimes (Domestic and Personal Violence) Act 2007.
3. Ms Reicher had informed the witness that there were always firearms around the house and they were normally kept under the bed. On further questioning the applicant admitted that he had concealed a firearm behind an arcade game in the house. Police located the Ruger M77 Mk 2 rifle where indicated. A rifle bolt was found about 2 m away on top of a piece of furniture.
4. During his interactions with Mr McGrath that day, the witness formed the view that he appeared to be under the influence of a drug. He was very jittery and speaking quickly. In the witness's view, his behaviour was consistent with that of other persons he has known to be under the influence of methamphetamine, commonly known as "ice".
5. While inspecting the property, the witness located "ice pipes" in the shed. In his experience, those pipes appeared to have been used to smoke methamphetamine. Plastic resealable bags that appeared to contain drug residue were also located in the shed.
6. At approximately 4 pm, the applicant was asked to produce the keys to his safe storage facility at 45 *** Road, so that his remaining firearms could be collected. As he did not have the keys, nor did he know where they were, a locksmith had to attend to break into the safe.

Applicant's submissions

1. The applicant relied on his written submissions dated 29 March 2019 (exhibit A1) in which he contended that the judgment of Ellis DCJ in In the Appeal of Michael Constantine Diamond DC 2016/156651 showed that a broader interpretation of "use" in s 40 of the Firearms Act was to be preferred, and that the applicant was "using" his rifle when he was in the process of cleaning it after firing and therefore not under any requirement to store it. He submitted that the charge laid against the applicant should have been under s 40, not s 39.
2. The applicant had removed the bolt from his rifle, placed the firearm in a bag, placed it behind a sheet and secreted it. He was never more than 20 or 30 m away from it. The section required the taking of "all reasonable precautions" and, as the court had said in Diamond, that did not mean "all possible precautions". The applicant had taken all reasonable precautions, and the prosecution had not identified any other precautions that Mr McGrath should have taken. The learned magistrate had only identified that the firearm should have been stored, which technically therefore would be a breach of s 40, not s 39. The court had also erred in ruling that cleaning was not a foreseeable "use" of a firearm (R v McGrath LC 8 May 2018, 201700344888). His Honour had blended the two offences under ss 39 and 40 in a way that was not intended by the legislation.
3. It was clear from the Local Court transcript that the applicant had been in the process of cleaning the rifle (transcript (TS) p 19). The court had held that cleaning was not part of the use of a firearm, but that was not the case. When he had seen the police arrive, he had put the rifle away with its bolt removed. He then left the house and locked the door, and had therefore taken all reasonable precautions. He was still in possession of the rifle and had it under his control.
4. Commissioner of Police, New South Wales Police Force (GD) v Mercer [2005] NSWADTAP 55, [20] showed that the circumstances of an offence and the reasons why it might have been dismissed were relevant to the question of the correct or preferable decision, regardless of whether a conviction had resulted or not. In this case there was substantive evidence that he had been in the process of cleaning the rifle. He had returned from Oberon that morning and had given details about the cleaning process. As there were no other precautions he could have taken, he had a good defence to a charge under s 39. His failure to notify his address was a purely technical point, as his residence at No 15 and his secure storage at No. 45 were only 100 m apart, and his father lived at that address.

Consideration

1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal to issue a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12].

Good behaviour bond

1. On 8 May 2018, a charge of "Not keep firearm safely - not prohibited firearm/pistol" in breach of s 39(1)(a) of the Firearms Act was proven against the applicant. The applicant did not appeal against that finding. As a result, he entered into a 12 month good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, commencing on 8 May 2018. The offence with which the applicant was charged is an offence prescribed by cl 5(2)(a) of the Regulation for the purposes of s 11(5)(d) of the Act. That section states that a licence "must not" be issued to a person who is subject to a good behaviour bond in relation to an offence prescribed by the Regulation. Neither the Commissioner nor the tribunal has any discretion in relation to a new licence application by a person subject to a bond for a prescribed offence.
2. Under s 24(2)(a), however, a licence "may be" revoked for any reason for which the licensee would be required to be refused a licence of the same kind. The Commissioner, and by derivation the tribunal, therefore has a discretion as to whether to revoke a licence or not.
3. It is sometimes said that the interaction of ss 11(5)(d) and 24(2)(a) creates an anomaly, as a person who has committed an offence and is subject to a bond is disqualified from applying for a licence, but if the same person commits the same offence and becomes subject to a bond after the licence is granted, the Commissioner or the tribunal has a discretion with respect to whether the licence should be revoked.
4. The situation is not necessarily anomalous, however. In the case of a person who already holds a licence, the Commissioner can consider the person's licensing history. If it shows a long record of conscientious compliance, it may be seen as appropriate to waive an isolated breach of the regulatory scheme. But where a person is applying for a licence for the first time, there is no prior record to consider and consequently no basis for exercising a discretion in favour of the applicant.
5. The applicant's bond was entered into on 8 May 2018 and expired on 7 May 2019, before this matter came on for hearing. For that reason the respondent no longer presses the bond as an independent ground for revocation. Nevertheless, the underlying conduct may still be considered in relation to other grounds, specifically the public interest.

Contravention of the Act

1. Section 24(2)(b)(ii) provides that a licence "may be" revoked if the licensee contravenes any provision of the Act or Regulation, whether or not the licensee has been convicted of an offence by reason of that contravention. The discretion granted by the section is to be exercised in light of, among other things, the serious view that the Legislature takes of Local Court orders for prescribed offences (Gibson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 212, [29]). The provisions of the Act are to be applied in such a manner as to promote the objects of the legislative scheme, notably as set out in s 3(1): Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23].
2. In applying s 24(2)(b)(ii), the tribunal said in Lynch v Commissioner of Police, New South Wales Police Force (GD) [2006] NSWADTAP 43, [47] that: [The fact that an individual] escaped a criminal conviction does not mean that he should therefore automatically escape and administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable.
3. In this case it is not disputed that on 8 May 2018, the applicant was found guilty at Liverpool Local Court of a firearms safe storage contravention under s 39(1) of the Act (reference H 332931093), and that a breach of s 39(1) empowers the Commissioner or the tribunal to revoke an applicant's license because it is an act that "contravenes any provision of this Act or the regulations" within the meaning of s 24(2)(b)(ii).
4. The applicant, however, submits that he was wrongly convicted under s 39(1) because the Local Court overlooked the distinction between the general safety precautions in s 39 and the specific category A and B storage requirements in s 40. Further, it was submitted, even if the applicant had been charged under s 40, he could not have been found guilty because at the relevant time he had been engaged in cleaning his rifle after having used it on the Oberon property and that the essential cleaning of the bore after firing falls within the meaning of the "use" of a firearm.
5. There appears to be some merit in the latter argument, although it would depend on the application to the definition of "use" in s 4 of the principle in Grey v Pearson (1857) 6 HLC 61, 106; 10 ER 1216, 1234, where Lord Wensleydale famously said, [In interpreting statutes] the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.

The public interest

1. The third ground for revocation advanced by the respondent is the public interest. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulations. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence.
2. The "public interest" allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
3. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
4. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).

Conclusion

1. Although the applicant has come under adverse notice on a number of occasions, his record is not such as to disqualify him from holding a licence indefinitely or for a long period. But before he can be entrusted with firearms again, he must be able to establish to the satisfaction of the Commissioner that he will conscientiously observe the safe storage rules and all other requirements of the firearms licensing system. In the present proceedings he has failed to do that, or indeed to give evidence at all. The decision under review must therefore be affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2019