McKinnon v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-05-30

Pursuant to s 64(1)(d) of the NCAT Act, the publication of the Confidential Material and Confidential Statements, or matters contained in the Confidential Material and Confidential Statements is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the NCAT Act, the publication and recording of the hearing of the application by the Respondent and any confidential hearing of these proceedings, including the confidential statements and any evidence given during any confidential hearing, is prohibited.

Except pursuant to order (5) below, all paragraphs marked "[NOT FOR PUBLICATION]" are not to be published pursuant to s 64(1)(c) of the NCAT Act or to be released to the Applicant.

A copy of these reasons, without redaction shall be released to the Respondent.

Background

Mark John McKinnon (the Applicant) was the holder of a category AB licence under the Firearms Act 1996 (the Act) from 4 December 2008 and was last issued with a firearms licence on 22 January 2019 with an expiry date of 22 January 2024.
On 14 July 2021, the Applicant's firearms licence was suspended, and on 16 June 2022, his licence was revoked for not complying with safe storage provisions under the Act.
On 15 July 2022, the Applicant sought internal review of that decision. It was not disputed that the Applicant was not notified of the outcome of the review within 21 days and accordingly, that the review was taken to have been finalised under s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act).
On 21 December 2022, Senior Member Mulvey made certain confidentiality orders pursuant to s 59 of the ADR Act and s 49(2) and s 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The matter came on for hearing on 30 May 2023, and in the course of that hearing, a confidential hearing was held pursuant to s 49(2) of the NCAT Act.

Applicable legislation

The general principles and objects of the Act are set out in s 3 as follows: (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 - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (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, (f) …
Section 11 of the Act relevantly provides: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (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, and … (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
Section 19(2)(a) of the Act provides that each licence is subject to the following condition: (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,
Section 24(2) of the Act provides as follows: (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: … (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 … (d) for any other reason prescribed by the regulations.
Section 40(1)(d) of the Act provides: 40 Category A and category B licence requirements (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies - … (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, …
Clause 20 of the Firearms Regulation 2017 (the Regulation) provides that the "Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".

The evidence

The Applicant relied on the document "Evidence of the Applicant" (exhibit A1). The Applicant gave oral evidence and was cross examined by Mr McGovern, the solicitor appearing on behalf of the Commissioner for Police, NSW Police Force (the Respondent). The Applicant also relied on the material submitted on his behalf in relation to his internal review request (internal review request) that was contained in the Respondent's s 58 documents. This consisted of a letter from the Applicant's solicitor dated 15 July 2022 attaching character references from Mr Wayne Shumack dated 7 July 2022, and Mr Allan Robertson, dated 6 July 2022. Also attached was a letter from Mr Gary Bryant dated 12 July 2022 confirming that the Applicant had successfully completed a course in firearms legislation relating to NSW as well as attaching the certificate awarded to the Applicant on that day from the Firearm Safety and Training Council Limited.
The Respondent relied on the s 58 documents (exhibit R1), a statement of Detective Sergeant Shane Conant dated 1 November 2022 (exhibit R2), a supplementary bundle of documents (exhibit R3) and a statement of Detective Sergeant Conant dated 11 May 2023 (exhibit R4). Detective Sergeant Conant was called at the hearing and was cross-examined by Mr Kable, the solicitor appearing for the Applicant.

Confidential Hearing

Following the evidence of Detective Sergeant Conant, a confidential hearing was held pursuant to s 49(2) of the NCAT Act. The orders previously made by Senior Member Mulvey continued in force. At the conclusion of the confidential hearing, the open hearing resumed.
[NOT FOR PUBLICATION]

Submissions

The Applicant relied on the submissions in the internal review request and also the attached decisions. Mr Kable made oral submissions at the conclusion of the hearing, including submissions in reply to those of Mr McGovern.
The Respondent relied upon the written submissions filed on 29 March 2023 and Mr McGovern made oral submissions at the conclusion of both the confidential hearing and the public hearing.

Role of the Tribunal

Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28-30], [34]. In an application for review the tribunal is not restricted to consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [23]. Accordingly, the objects and purposes of the Act are relevant.

Issues

The Respondent's position is that: 1. The Applicant contravened the Act by failing to comply with a number of safe keeping requirements; 2. The Applicant has contravened conditions of his firearms licence by failing to comply with safe keeping requirements under the Act; 3. The Applicant is the subject of a number of criminal intelligence reports which are subject to orders under s 64 of the NCAT Act; 4. In consideration of the matters outlined at (a) - (c) above, it is not in the public interest for the Applicant to hold a firearms licence; 5. The correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.

Public Interest

The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment 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 legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include 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, [33]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [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 as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 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 [8].
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

Applicant's contraventions of safe storage conditions

The Respondent relied on NSW Police Force COPS Event Reference Number E 83381678 relating to events on 14 July 2021. It was not in dispute that on that day, Police attended the Applicant's residence where he lives with his parents (the Property) in order to execute a search warrant in relation to the seizure of a Toyota Landcruiser. The Property was also the Applicant's safe storage address. During the search of the Property, Police located a white Toyota Landcruiser, but this was not the same Landcruiser as identified in the search warrant. The Landcruiser identified at the Premises was found to belong to a relative of the Applicant.
During an inspection of the Applicant's firearms on that day, Police located three shotgun rounds unsecured on top of the Applicant's firearms safe. Within the safe, several loose rounds of ammunition were found, stored in the same section as the firearms. Together with the Applicant's firearms licence and a large amount of assorted ammunition, Police also seized the Applicant's six firearms as follows: 1. CZ 22 Long Rifle; 2. Sako Rifle; 3. Mossberg Rifle; 4. Benjamin Air Rifle; 5. Tikka Rifle; and 6. Adler Single Barrel Shotgun.
It was not disputed that the Applicant was issued with an infringement notice in relation to the offence of "Holder of Category A or B licence not have approved storage" which the Applicant subsequently paid.

Applicant submissions

In the internal review request, it was submitted on behalf of the Applicant that the introduction of the penalty notice provisions for safe storage breaches was to avoid licence revocations. It was noted that given the low objective seriousness of the offending in this case, it was surprising that an election had been made to issue a revocation notice. It was submitted that in this instance there was no indication of the length of time that the ammunition had been left on top of the safe but that it did not come into the possession of anyone unauthorised, and that as the firearms associated with this ammunition was appropriately secured, the "potential or real risk posed" was relatively low. It was submitted that the character references vouch for the Applicant's safe practices and indicate that his breaches were out of character and a "one-off" event. It was further noted that the Applicant's completion of a further course on firearms was an indicator of his intention to better himself and to ensure that this did not happen again.
It was further submitted that the Applicant had held a firearms licence without incident for some time, had learnt a valuable lesson, expressed contrition and remorse and that it is highly unlikely that he will reoffend. On that basis, and having regard to various decisions, including Jameson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 25 (Jameson) and Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 (Uzelac), it was submitted that the Applicant does not pose a risk to the public and the appropriate course of action would be to set aside the original decision and restore the Applicant's firearms licence.
In oral submissions at the conclusion of the hearing, Mr Kable submitted that the Applicant had not previously come to police attention in relation to firearms and that it was only during the execution of the search warrant at the Property, that the Police had identified the breach of safe storage conditions. It was submitted that the breach was a minor one, the Applicant had indicated that he had learned a great deal, that he would not make more mistakes and would be vigilant in the future. Mr Kable made reference to the decisions in Legallant v Commissioner of Police, NSW Police Force [2023] NSWCATAD 47 (Legallant) and Mallon v Commissioner of Police, NSW Police Force [2022] NSWCATAD 325 (Mallon).

Respondent's submissions

In the written submissions, the Respondent submitted that it was clear that the Applicant contravened s 40(1) of the Act in that he: 1. Had three shotgun rounds sitting unsecured on top of the safe, not stored in a locked container of a type approved by the Commissioner; and 2. Had several loose rounds of ammunition in the base of the firearms safe, stored in the same section as the firearms, and not stored in a locked container of a type approved by the Commissioner.
It was submitted that as a consequence, the Applicant also contravened a condition of his licence and that contravention of the safe keeping requirements go to the crux of the principles and objectives of the Act, and that this is reinforced by the standard conditions imposed on all licences. It was submitted that even where safe keeping contraventions lie at the lower end of the scale of seriousness, they can evidence an attitude that is still significant when determining whether a person should have a licence: Bottomley v Commissioner of Police [2005] NSWADT 211 at [18]-[19]. The Respondent submitted that the Applicant's breach was not merely technical and posed a risk to the public safety. It was submitted that due to the contraventions of the Act and the conditions of the Applicant's licence, that it is appropriate for the Tribunal to exercise the discretion in s 24(2)(b)(ii) and s 24(2)(b)(iii) of the Act and affirm the Respondent's decision to revoke the Applicant's firearms licence.

Consideration

The Respondent's revocation power, and by derivation that of this Tribunal, is a discretionary one. In Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43 at [37] the Administrative Decisions Tribunal Appeal Panel noted that "[no] guidance is given in the provision [s 24(2)(b)(ii)] as to what factors might be relevant [to the exercise of the discretion]. Without seeking to be exhaustive, relevant factors would, we think, include the gravity of the contraventions, any history of contraventions, mitigating circumstances and general public policy considerations".
The Tribunal is able to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62]-[64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30]. In the current matter, it was not in dispute that the Applicant was issued with an infringement notice in relation to the offence of "Holder of Category A or B licence not have approved storage", that he admitted his error and paid the penalty amount. In evidence, the Applicant made admissions to having left three shotgun rounds on top of the safe and having several loose 0.22 rounds in the base of the safe, in the same section as his firearms. Accordingly, I accept that the Applicant's conduct establishes that he has contravened the provisions of s 24(2)(b)(ii) and s 24(2)(b)(iii) of the Act and that his licence may be revoked.
In Uzelac at [19], Hennessy DP set out the principles applying to licence revocations, particularly involving safe storage breaches, in a passage that has been widely approved and followed: 19 The legal principles which apply to the revocation of a firearms licence have been set out in previous decisions of this Tribunal. In summary, the following principles can be extracted: · while there is no onus of proof on either party, for the Tribunal to set aside a revocation decision based on failure to store firearms safely an applicant must show that there are persuasive and relevant considerations that take their matter outside the ordinary case. (Phegan -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 127; Hart -v- Commissioner of Police, New South Wales Police Service [2003] NSW ADT 114 [51] to [54]); · the principal issue is whether there is a risk to the safety of the public if the applicant retains the licence. (Vella -v- Commissioner of Police, NSW Police Service [2003] NSWADT 91 at [35]). Relevant considerations include: · the reason for failing to store the firearm safely; · the length of time the firearm was not stored safely; · the potential or real danger posed by failure to store the firearm safely; · the person's previous conduct in relation to storage of firearms and any related matter; · the person's understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and · the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety. (Moody -v- Commissioner of Police, New South Wales Police [2002] NSWADT 146 at [25]) · in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety (Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50) · the discretion to revoke a licence must be exercised keeping in mind the nature of the conduct and the principles and objects of the Act; (Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at [37])
The first consideration in Uzelac is the reason for failing to store the firearm safely. In his written evidence, the Applicant admitted to having left three shotgun cartridges on top of his gun safe and a number of .22 rounds stored within the safe. He indicated that this was because "a number of spilt boxes fell inside the safe" and though he believed that he had picked them all up, there were a few still on the bottom. He admitted that he "was lazy and did not take the time to ensure compliance." He said that he "admitted the error and paid the fine." The explanation provided by the Applicant in relation to the spilt boxes does not account for the three rounds left on top of the firearms safe and no further explanation was provided by him in relation to them.
In relation to the second factor in Uzelac, the Applicant did not provide any evidence as to how long the ammunition had not been properly stored. In Jameson, the Tribunal found, in relation to firearms stored in a vehicle at [65], that a period of between 12 and 15 hours was a considerable time.
In relation to the third factor, the potential or real danger posed by the Applicant's failure to store the ammunition safely was the risk that the ammunition could be stolen or taken by other persons. It was submitted on behalf of the Applicant that it did not come into the possession of anyone unauthorised and that as the firearms associated with the ammunition was appropriately secured, the "potential or real risk posed" was relatively low.
Section 40 of the Act requires that any ammunition must be stored in a locked container of a type approved by the Commissioner and that it is kept separate from the receptacle containing any such firearm. In the current instance, three rounds were found unsecured on top of the Applicant's firearms safe, and I find that this conduct posed a real risk that the rounds could be taken and potentially used by any person who accessed the Applicant's home. I accept that the several loose rounds found within the firearms safe posed less of a risk, however the fact that they were stored loose in the same section as the Applicant's six firearms, rather than in a locked container and kept separate from the receptacle containing the firearms resulted in a risk that any person who gained access to the Applicant's firearms, also had immediate access to ammunition.
The next consideration in Uzelac is the Applicant's previous conduct in relation to firearms and any related matters. I accept that prior to the inspection on 14 July 2021, the Applicant had an unblemished record in relation to firearms and has no criminal history. I accept that the two character references relied upon by the Applicant vouch for the Applicant's safe practices and indicate that in the opinion of the referees, leaving unsecured ammunition on top of his firearms safe is out of character for the Applicant. No mention was made by either referee of having observed the Applicant's firearms safe on the Property.
The next consideration is the person's understanding of the importance of safe storage and the likelihood that firearms, and in this instance, ammunition, will not be stored safely in the future. The Applicant has admitted to not having safely stored the ammunition in question. He has undertaken the advanced course on firearm safety with the NSW Firearms Awareness Council. His written evidence was that the course was enlightening; that he learnt a lot and has a new understanding of the need to safely store firearms as well as other laws relating to their use and possession. The Applicant stated that he will not make the same mistake again, or any mistakes with firearms and will be far more vigilant with them in the future.
In this instance, there is no evidence to suggest that the Applicant was unaware of the requirements relating to the safe storage of ammunition at the time of the breach and I find that he was so aware. The Applicant's knowledge of the safe storage provisions at the time of the breach is reflected in the character reference from Mr Shumack, in which he indicated that the Applicant (sic) "is very diligent the with security of firearms and ammunition" and that both he and the Applicant understand and respect that it is a privilege to hold a firearms licence in NSW. The Applicant's other character referee, Mr Robertson, referred to the Applicant's professionalism at work and that it was a surprise to him to learn of this matter. He stated that (sic) "having an oversight of leaving unsecured ammunition on top of the gun safe is outer character for [the Applicant]". The Applicant did not claim to have been ignorant of the relevant safe storage provisions but rather said in his written evidence that he was "lazy and did not take the time to ensure compliance".
The final consideration in Uzelac is the reason that the person has a firearms licence. In his applications for a firearms licence, the Applicant's genuine reasons for the licence was sport/target shooting and recreational hunting/vermin control. Mr Shumack refers to sharing a common interest in hunting and recreational shooting with the Applicant as they were both raised to do so with their grandfathers. Since the passing of their grandfathers, the two have bonded with their love of hunting and spotlighting. Mr Robertson refers to the Applicant being devastated about the loss of his firearms, "as this is one of the ways [the Applicant] gets relief and relaxation from work when he is out hunting vermin on approved locations."
Whilst I accept that the Applicant very much enjoys hunting and spotlighting, it is an underlying principle of the Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. Accordingly, the considerations of the Applicant's private interests in this matter are outweighed by the public interest.
Hennessy DP said in Uzelac that "in relation to the first three considerations, if the breaches of the Act or regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety." In Polyzogopoulos v Commissioner of Police, New South Wales Police Service [2001] NSWADT 166, the Tribunal described the licencing conditions imposed by s 19(2) of the Act at [23] as "being fundamental conditions of any licence when having regard to the objectives of the Act (in particular, s 3(2)(e)) and its structure."
In this matter, for an unspecified time, the Applicant left three unsecured rounds on top of the firearms safe and also had several loose rounds of ammunition in the base of the firearms safe, stored in the same section as his firearms. The Applicant has provided an explanation for the latter failure to comply with the safe storage requirements, namely that he failed to properly check that he picked up all of the ammunition that had fallen within the firearms safe. However, the Applicant has not provided an explanation in relation to the three unsecured rounds that were found by Police on the top of the Applicant's firearms safe. In circumstances where the Applicant's failure to store his ammunition in accordance with the requirements of s 40(1)(d) of the Act stems not only from a failure by him to check that all loose ammunition had been picked up from the bottom of the safe, but also by leaving three rounds on top of his gun safe with no explanation and potentially at a different time, I am not satisfied that the Applicant's breach of the safe storage provisions is either technical or trivial. In the absence of any explanation by the Applicant for leaving the rounds on top of his firearms safe and in the absence of any explanation as to how long all of the ammunition had been unsafely stored, I am not able to be satisfied that the Applicant's conduct is excusable.
In Uzelac, Hennessy DP prefaced her remarks by saying that for the Tribunal to set aside a decision revoking a licence based on the failure to store firearms safely, the applicant needed to show persuasive and relevant circumstances that take the matter outside the ordinary case. In the current matter, the Applicant primarily relied upon his two character references, his remorse and the understanding gained from his completion of the firearms course.
As referred to previously, Mr Kable relied on a number of decisions, including that of Mallon. Each case must of course be considered on its merits and whilst, there are similarities between the two cases, the facts in Mallon can be distinguished from the current matter. In Mallon, the applicant was the owner of a large property who required a firearm for primary production purposes and in his oral evidence, he explained that he thought that as the rifle in question did not belong to him, he should not keep it in his safe. He said in his evidence that he had learned at the firearms course how important safe storage was, and what his obligations were if he were to find a firearm and acknowledged that he had previously been "lax" about such matters.
In the current matter, the Applicant did not elaborate on what he had learned from the firearms course or on what basis he found it to be "enlightening". Whilst he indicated that he would be far more "vigilant" in the future, he did not give any evidence about how he would go about doing so. I have found that the Applicant was aware of the relevant safe storage provisions at the time of the breach and that in his own words, was "lazy and did not take the time to ensure compliance". Whilst the gaining of further knowledge by way of further firearms training is to be encouraged, I am of the view that the Applicant's participation in the firearms course carries significantly less weight than in Mallon as the Applicant, unlike Mr Mallon, was aware of the relevant safe storage requirements at the time of the breach and failed to take the time to ensure compliance.
I find that the facts of this matter are also distinguishable from the matters of Jameson and Legallant. In relation to Jameson, I accept that the theft of the applicant's firearms from his vehicle, posed a much greater danger than that in the current matter. However, I find that the acute level of remorse and contrition demonstrated by Mr Jameson, and the actions taken by him after having had his firearms stolen, far exceeded those of the Applicant in the current matter.
In Legallant, as in Jameson, the Applicant had his firearms stolen from his vehicle. He gave evidence that he had previously thought that a locked vehicle was sufficient to satisfy the firearms safe storage requirements but at the time of the hearing, he accepted that his understanding was wrong. The applicant in that case expressed considerable remorse, underwent a firearms course and upgraded security at his home and the Tribunal restored his licence. For similar reasons that I found in relation to Jameson, I find that the facts in the current matter can be distinguished from those in Legallant. A further distinguishing factor is the applicant in Legallant believed that leaving his firearms in a locked vehicle complied with the safe storage requirements, whereas I have found that the Applicant knew what the requirements were, but did not take the time to comply with them. Unlike the other cases relied upon by Mr Kable, the Applicant did not provide a full explanation as to circumstances behind the breach, including the reason for leaving the ammunition on top of the firearms safe and the length of time that the ammunition had been improperly stored, both on top of the firearms safe and inside it.
Having regard to the above factors, and in particular, the Applicant's failure to provide a full account of the safe storage breaches in circumstances where he was aware of the safe storage requirements and where he admitted he was lazy and did not take the time to ensure compliance, I am not satisfied that the Applicant has showed persuasive and relevant circumstances that take this matter outside the ordinary case or that the safe storage requirements set out in the Act are capable of being met by him and the Applicant's conduct demonstrates a lack of regard for the strict requirements of a firearms licence and the possession of firearms. Whilst I accept that the Applicant has completed a firearms course, as referred to previously, this carries limited weight in circumstances where the Applicant was aware of the safe storage provisions at the time of the breach and where he was "lazy and did not take the time to ensure compliance".
It is an underlying principle of the Act to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The objects of the Act include the provision of strict requirements that must be satisfied in relation to the licensing of firearms and to ensure that firearms and ammunition must be stored in a safe and secure manner. In the circumstances of this case, I am not satisfied that there would be virtually no risk if the Applicant was to hold a firearms licence at this time. Accordingly, I am satisfied that it is not in the public interest for the Applicant to continue to hold a firearms licence.

Other matters relied upon by the Respondent

It was part of the Respondent's case that the Applicant is the subject of a number of criminal intelligence reports subject to orders under s 64 of the NCAT Act. Four partially redacted intelligence reports were relied upon by the Respondent in the open hearing.

2003 Report

Information Report I 18057514 is a report made by a Police officer related to events on 19 July 2003 (2003 Report) and primarily concerned the Applicant's aunt, who resided in the same street and suburb as the Applicant but at a different property (neighbouring property). The Narrative in the 2003 Report noted that the neighbouring property had an extensive history for supply drugs by a named person and her sons. The 2003 Report also records a vehicle being sighted at the address and subsequently stopped by Police. Occupants of the vehicle stated to Police that they were aware of drug activity at that address.
The 2003 Report notes that the named person was spoken to a short time after the vehicle stop and acknowledged that her sons were involved in the supply of cannabis at the residence. Whilst, the Applicant's name and address is included in the Information Report Summary, it was conceded in Detective Sergeant Conant's statement (exhibit R4) that the Applicant is the nephew of the person named in the report and not her son.
The Applicant gave similar evidence that he was not the son of the named person but that she was his aunt. His evidence was that prior to 2009, the neighbouring property was owned by his grandfather and that his only reason for being there was to visit his family, namely his grandfather. He said that his grandfather had prostate cancer and the Applicant assisted him by driving him to hospital for chemotherapy prior to his death in 2009. The Applicant could not recall being there for the events outlined in the 2003 Report and stated that he had never been arrested or had anything to do with illicit substances. He stated that he did not recall having acknowledged that he was aware of drug activity at the neighbouring property and said that he was not aware of drug activity there and was never involved with drugs himself.

2005 Report

Information Report I 24829655 referred to events on 2 April 2005 (2005 Report). The Narrative refers to a number of persons of interest including the Applicant and his aunt. The report indicates that Police executed a search warrant at the neighbouring property and that the Applicant's aunt was not present. The Applicant was noted to have attended the neighbouring property whilst the warrant was being executed.
The Applicant said in cross-examination by Mr McGovern that he could not recall being present during the events outlined in the 2005 Report but that it was 20 odd years ago. The Applicant acknowledged that his name appeared in the Report but said that it was a case of "mistaken identify" and that he was not there. He said that his aunt had three sons, one of who was the same age as him. The Applicant denied knowing what had happened on that day or knowing that his aunt was involved in the supply of drugs.

2006 Report

Information Report I 30104508 relates to events on 18 December 2006 (2006 Report) and records that the Applicant was stopped by Police for a traffic offence. The 2006 Report does not include any details as to the traffic offence. The Respondent did not contend that the traffic offence was of itself relevant to the Applicant's firearms licence and the Applicant did not dispute the traffic offence. On this basis, I give no weight to the 2006 Report.

2008 Report

Information Report I 32592870 relates to a report made on 13 February 2008 (2008 Report) which notes that for the previous ten years, information has been regularly received that the Applicant's aunt has been selling prohibited drugs from the neighbouring property. The report notes that recent intelligence suggest that the only drug sold from the premisses is cannabis and that it is "one of the most reliable sources" in the area. The report notes that the Applicant's aunt is assisted by other family members, including the Applicant.
In his written evidence, the Applicant stated that he is being confused for one of his aunt's sons and that he should not be punished for residing in the same street or being related to his aunt. He stated that he has never assisted his aunt or any other of family members or any other persons, in the sale or procurement of illegal substances. The Applicant stated that he has never been charged or convicted of possession of any illegal drugs, and that no drugs, or anything illegal, had been found in any of his motor vehicles when searched by NSW Police, or on any persons that have been with him at that time. The Applicant's evidence was that he has never been charged and or fined with being under the influence of any drug or alcohol whilst operating a motor vehicle. He also said that he is constantly tested for drugs and alcohol at his place or work and that he has never produced a positive test result for any substances.
In cross-examination, the Applicant did not accept that his aunt was involved in the supply of drugs. He confirmed that he had no involvement with the supply of drugs and that he has no criminal history. I accept that the Applicant has no criminal history and that there is no evidence of him having been charged in relation to any matter.

Open evidence of Detective Sergeant Conant

Detective Sergeant Conant was made available for cross-examination by Mr Kable. In response to Mr Kable's questions, he indicated that he did not know how many sons the Applicant's aunt had and said that the neighbouring residence was directly across the road from the Property where the Applicant resided. He estimated that there was about 50 to 60 metres between them. When asked if there was 200 metres between them, the officer responded that the properties were directly across the road from each other and that from curtilage to curtilage where the cars were parked was 60 metres. The Officer conceded that it was 200 metres between the houses on the two properties.
The Officer conceded that the reference in the 2008 Report to the Applicant's house number was incorrect and that instead he lives across the road from the neighbouring property. The Officer said that there were only two houses in the street, and they were surrounded by bush, and that this may have led to the confusion about the house number. When asked about the possibility of confusion about the identify of participants in the Reports, the Officer said "no" and that local police knew the people who lived there.

Applicant's other evidence

The Applicant was cross-examined by Mr McGovern. The Applicant said that his aunt had taken over the neighbouring property in around 2010, following the death of his grandfather. He said that his aunt had lived there "on and off" since he was born and that she also had another residence in Queensland. He said that he had a number of cousins, and that on occasion he had gone to the neighbouring property to visit family. He acknowledged that family members had visited the Property but said that it was not a regular occurrence. He said that his aunt never came to the Property, except if she needed assistance with the animals. He said that when she did come over, she did not come inside. He said that his cousin, Aaron, did not reside at the neighbouring property. He said Aaron did not visit him but that he did visit the Applicant's father who was helping him with the Landcruiser that was parked in the driveway. When asked how regularly Aaron visited, the Applicant said, "not even once a month".
The Applicant was asked if he had been at the neighbouring property at any time that Police were present, and the Applicant said only once. He said that he had "gone across the road last year" to check if his aunt was "ok" as the police were there.
The Applicant was asked further questions about Aaron and agreed that Aaron occasionally visited the neighbouring property to visit family. When asked if he was aware that Aaron had recently been in prison, he said that he believed so, and that it was for firearms offences. He agreed that he was only aware of the matters in broad terms. He said that his father had been working on the Landcruiser on the Property and when Police inspected it, it turned out not to be the vehicle that they were interested in. When Police carried out the warrant, the Applicant said that they had not found any drugs, only the safe storage breach. The Applicant denied that Aaron was working on the Landcruiser with the Applicant's father and that he had assisted with bringing it over to the Property.
The Applicant was asked about his cousin, John, and whether he knew about his guilty plea. The Applicant said that he was not privy to that information, and said that he does not talk to him. When asked if the Applicant goes to the neighbouring property, he said that he only goes there to assist with the animals. He said that he went over about three months previously to help with his aunt's dog. When asked if he had much contact with Aaron or John in recent times, he said "not a lot". He said that he could not recall meeting with Aaron when he was helping his aunt.
In re-examination, the Applicant gave evidence that as stated by the Officer, the two houses were about 150 to 200 metres away from each other "door to door". He said that the street does a loop and then continues to other properties. The Applicant said that the two houses are not directly across the road and that you cannot see the other front door or the house, only the driveway, sheds and pine trees. He stated that his father had been working on the Landcruiser by himself and that he is a mechanic. He was asked if Aaron had any brothers and said that he has a sister. He said that Aaron's father owned the Landcruiser being worked on.

Applicant's submissions

In oral submissions, Mr Kable submitted that the Respondent's case was based on lots of assumptions and inferences relating to the two properties. He submitted that Detective Sergeant Conant did not know how many children the Applicant's aunt had, and that there had been a mistake in the Applicant's address in the 2008 Report. Mr Kable referred to the written evidence of the Applicant and his belief that there had been misidentification of his aunt's children at the neighbouring property. It was submitted that clearly there had been a case of misidentification and that the Applicant was a similar age to three of the children from the neighbouring property. It was submitted that the Police reports were not substantiated and were not tested in evidence and that in at least one report, the officer "got it wrong".
In his oral submissions in reply, Mr Kable made reference to the decision in Finlay v Commissioner of Police [2020] NSWCATAD 5 in relation to the issue of "proximity". It was submitted that given the various issues raised, the Tribunal must look at the confidential evidence very carefully and have regard to the flawed misidentification issues and that the Applicant has not been directly implicated in any wrongdoing other than the safe storage issues. It was submitted that the inferences would not be enough to warrant the revocation of the licence and that other options would potentially be available.

Consideration

Having regard to the evidence, I accept that the Applicant is the nephew, and not the son, of the named person in the 2003 Report and accordingly, I find that any statements made by his aunt about her sons do not relate to the Applicant. The 2003 Report is very brief and there is a blanket reference to "All POIs" being compliant with Police directions and acknowledging that they were aware of drug activity at the house. There is no information in the 2003 Report as to how the "POIs" were identified or to the exact conversation that took place, and who said what. The Applicant's name and address is contained in the Report next to the word "PERSON" rather than POI. Detective Sergeant Conant gave evidence that local police would know the various participants by sight but there is no evidence relating to the officers involved in this incident and they did not give evidence in the proceedings. Accordingly, having regard to the limited nature of the 2003 Report, I am not satisfied that the Applicant was one of the occupants of the vehicle stopped by Police or that he told Police that he was aware of drug activities at the neighbouring property.
The 2005 Report is also relatively brief and does not indicate how the persons said to have been at the neighbouring property were identified. No further records or police evidence relating to the events outlined in the 2005 Report was adduced. In circumstances where the Applicant denies being present, I am not satisfied on the evidence before me that the Applicant was present at the neighbouring property in the circumstances set out in the 2005 Report.
The 2008 Report is stated to fall within the "Intelligence" category and is sourced from the general public. Whilst I accept that the material contained within the 2008 Report may be of assistance to Police, it did not result in any action against the Applicant and no evidence has been adduced to support the information provided. It is clear that the Applicant's address contained in the 2008 Report is not correct and refers to the neighbouring property. Having regard to the 2008 report, I am not satisfied that it establishes any wrongdoing by the Applicant.
Accordingly, whilst I accept that the Applicant's name has appeared in the various information reports referred to above, I am not satisfied that these reports establish that the Applicant was involved in any criminal activity or that they establish a connection by him with any drug activity at the neighbouring property.

Confidential evidence

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

CONCLUSION

Accordingly, having made the finding that it is not in the public interest for the Applicant to hold a firearms licence as set out above, the decision under review should be affirmed.

ORDER 1. The decision under review is 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: 29 February 2024

At a glance

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Decision date

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Judgment (29 paragraphs)

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Cases Cited (15)