Meacham v Commissioner of Police, NSW Police Force

Ms Meacham's submissions

1. Ms Meacham noted that she was a person of good character with no convictions. She had joined the Australian Defence Force in 1991 and attained the rank of Corporal. She had military firearms training. In about 1996 Ms Meacham completed the Security 1A1B security course and commenced work in the security industry. Between 1996 to 2011, Ms Meacham completed a number of courses pertaining to firearms training, security training, risk management, firearm instructor training, armour training and security operations training. Ms Meacham was the secretary of the Harley Crescent Pistol club, located at Condell Park Range, for approximately 14 years.
2. Ms Meacham said that she had not been charged with any other offences other than the offence arising out of the suicide at the Range in 2013. Ms Meacham submitted that it was an indicator of her personality that she had taken full responsibility and had pleaded guilty to the offences relating to the suicide at the Range in September 2013.
3. She had never been adversely known for the handling of firearms in a professional capacity as a security officer or in her personal capacity. Ms Meacham provided references which indicated that she was well thought of by her peers.
4. The evidence indicated that firearms had been stolen from the Range while Ms Meacham was overseas. There were a number of Commissioners Authority holders in connection with the Range - as well as Ms Meacham. Senior Constable Jackson's evidence was not as significant as the Commissioner had suggested. However, it should be noted that he had given evidence that that Ms Meacham was co-operative, competent, frank and knowledgeable. Police had chosen to speak with her although other range officials were present. Ms Meacham had been the Secretary of the Harley Crescent Pistol Club for some time. It had recently received positive comments after a Police audit. In March 2018 Ms Meacham had applied for an ABH licence. The refusal did not suggest that she was a disqualified person nor that she had a propensity for violence or had in any way misused her personal firearms, or firearms registered to her.
5. The issue in the matter was whether the correct and preferable decision was to affirm the decision under review. Ms Meacham submitted that the standard of proof applicable in the proceedings was "on the balance of probabilities." See Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169. Ms Meacham noted that the phrase "public interest" is not defined in the Firearms Act. The discretion to approve or refuse an application should be exercised in a way which promotes the principles and objects of the Firearms Act. In the matter of Webb v Commissioner of Police [2004] NSWADTAP at [32], the Tribunal made the comment about public safety: "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".
6. The question of risk was not 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. See also Martin v Commissioner of Police, New South Wales Police Force [2017] NSWSC 897 at [64] to [66].
7. Ms Meacham submitted that there was no reasonable basis to suggest that it would be contrary to the public interest to issue Ms Meacham with an ABH licence.

The Respondent's Case

1. The Respondent provided statements from police witnesses. Senior Constable Wayne Jackson and Senior Constable Bob Jones both gave evidence and were cross examined.

Evidence of Senior Constable Wayne Jackson

1. Senior Constable Jackson referred to his statements of 2 March 2016 and 4 June 2019. He has been a firearms compliance coordinator at the Firearms Registry since 2012.
2. Senior Constable Jackson had attended the Condell Park Indoor Firearms Range on four occasions. 1. To participate in an audit in May 2012; 2. To participate in an inspection of the range on 31 August 2012; 3. After the suicide at the range on 4 September 2013; and 4. To conduct an audit in relation to the loss of firearms from 27 October to 30 October 2015.
3. Senior Constable Jackson noted that Mr Barry had nominated Ms Meacham as a close associate when he applied for licences in 2003, 2008 and 2013. Ms Meacham was granted employee authorities in 2003, 2008, 2013 and 2014. During the inspection after the suicide at the Range in September 2013, Ms Meacham had solely facilitated the inspection of the complex. Ms Meacham had told him she was in charge of the Range on the day of the suicide. It also appeared that Ms Meacham was solely in charge of the Range on the day of his inspection. Mr Barry was not present either on the day of the suicide or on the day of inspection.
4. During the audit on 24 and 25 May 2012, Senior Constable Jackson had been engaged in a heated conversation with Mr Barry. Mr Barry walked out and did not return. As a result, Ms Meacham facilitated the audit.
5. During the audit from 27 to 30 October 2015, Mr Barry was regularly absent. Senior Constable Jackson considered that this was because Mr Barry lacked the emotional control to deal with the circumstances. Senior Constable Jackson observed that Ms Meacham was in charge in these circumstances. He considered that it was clear that Ms Meacham owned and operated the range as her own. Ms Meacham was at all times fully competent, and frank with the police attending the range. She had assisted the police with their work.
6. Senior Constable Jackson told the Tribunal that it was not common practice for a licensee to hand over their firearms to a dealership once their licence had been revoked. The practice was frowned upon. The more proper action was to hand firearms into the police.

Evidence of Senior Constable Bob Jones

1. Senior Constable Bob Jones gave evidence and was cross examined. He had attended at the audit of the Range in October 2015. He had prepared the Brief of Evidence for the prosecution of Mr Barry concerning firearms missing from the Range. He had not found evidence that a Mr Martin had stolen firearms from the Range. Neither Mr Barry nor Ms Meacham had told him where the missing firearms were. One of the missing firearms had been used in a subsequent homicide. Some of the missing firearms had been found. He had not had any direct dealings with Ms Meacham. Everyone at the Range had been civil in their dealings with him.

The Respondent's submissions

1. Ms Meacham had been nominated as a "close associate" by Mr Barry. A close associate is a person who either holds a financial interest or a power to participate in managerial or executive decisions or to appoint a person to a relevant position. It was clear that Ms Meacham was not merely an employee but someone who had an interest in the business or who held significant managerial or executive powers. It was clear from the witness evidence that Ms Meacham was a person who, with Mr Barry, co-owned the dealership. She was intimately involved in all aspects of the operation of the dealership - including recording of purchases and sales of firearms, the storage of firearms and the auditing and checking of firearms held by the dealership. Being a close associate provided Ms Meacham with the authority of the firearms dealers licence that was issued to Mr Barry's company. Ms Meacham was issued with the directors authority with the range on 15 November 2003 and 22 November 2014. She was nominated as an employee of the Range's firearms dealer business in 2003 and 2008. She was named as an authorised person on Mr Barry's prohibited weapons dealer permit in 2003, 2007 and 2008. This nomination provided Ms Meacham with the same powers as the licence holder. When she applied to be an authorised person on Mr Barry's prohibited weapons permit in 2008, Ms Meacham stated that her position was manager, and her tasks in the range were - shop duties, handling firearms and selling firearms.
2. Until 9 April 2014, Ms Meacham was a club armourer for Harley Crescent Pistol club together with Mr Barry and Mr Yammine, her son-in-law. It was clear as well that Ms Meacham was a person with responsibility for the Range on the day of the suicide in 2013. She facilitated the police investigation of the suicide. Her statement set out that she was part owner of the Range along with her partner Mr Barry. Her son-in-law Tony Yammine referred to Mr Barry and Ms Meacham as the owners of the business. Probationary Constable Dechaufepie recorded Ms Meacham as owner of the premises. When police had attended the Range, they had noted Ms Meacham as being the authorised manager or the person running the range or the owner of the range. When firearms were found to be missing in 2015, it was Ms Meacham who had largely assisted police in their audit. Later in November 2015 Ms Meacham had contacted the police advising that a firearm had been located in pieces
3. Ms Meacham had been charged and pleaded guilty to an offence under the Firearms Regulation as a result of the suicide. While the offence was dismissed, the Tribunal should have regard to Ms Meacham's conduct and her plea of guilty. The failure to provide the required number of supervisors at the Range at the time of the suicide was a failure of the controller of the Range - Ms Meacham. The fact that Ms Meacham did not accept responsibility for the contravention, submitting that it was an error by the Range supervisor, reflected poorly on her.
4. Ms Meacham had transferred her firearms to the dealership. This was intended to thwart the operation of the Act and Regulations. She should have permitted her firearms to be seized when her licence was suspended and revoked by the police. This demonstrated that Ms Meacham should not now be issued with a firearms licence.
5. Ms Meacham had made no effort to identify or provide any information about the firearms which had been missing from the dealership, despite her intimate involvement in the operation of the dealership. There was no evidence to support Ms Meacham's assertion that she had undertaken an audit of firearms before she left for her overseas trip. There was no corroborating evidence from her husband Mr Barry to support the submission that there had been an audit prior to the overseas trip. There was no evidence that established that a person had taken firearms that he was not entitled to. The dealership had not kept a copy of the relevant CCTV footage. A prudent licence holder would have made a copy of the CCTV footage. Ms Meacham had not engaged an external contractor to make a copy of the CCTV recording.
6. Ms Meacham had not provided any information to the police about the whereabouts of the missing firearms. Missing firearms created significant risk to public safety. This suggested there would be a significant risk should Ms Meacham's personal firearms licence be granted . Ms Meacham had said that she had not provided the police with information about the missing firearms because the police had seized the relevant books. However, the evidence from Senior Constable Jones was that access to the books had been available at all times to Mr Barry.
7. A firearms licence is a privilege not a right. The privilege is conditional on the overriding need to ensure public safety. Ms Meacham's individual interest in holding a firearms licence is subordinate to the public interest in ensuring public safety. The Commissioner held concerns about the way Ms Meacham conducted herself in her involvement with the Range as an authorised employee of the business. The events at the Range demonstrated that the Tribunal could not be satisfied that Ms Meacham would ensure the safekeeping and security of any firearm in her possession, or uphold the obligations associated with a personal licence any differently to the conduct she had engaged in while working with the Range. It was questionable as to whether or not Ms Meacham would provide information to the Commissioner about missing firearms.
8. Ms Meacham provided information and assistance to the Police when things were going well. However, the response from Ms Meacham when she knew that her firearms were to be seized when a large number of firearms held by the dealership were missing, was evidence that should carry significant weight in the matter. The evidence before the Tribunal did not establish that there is "virtually no risk to public safety" if Ms Meacham were to have a firearms licence. The facts demonstrated that it would be contrary to the public interest to grant Ms Meacham her firearms licence.

The Tribunal's role

1. The Tribunal has jurisdiction to review the decision of the Commissioner pursuant to s75(1)(a) of the Firearms Act 1996 (NSW) and s9 of the Administrative Decisions Review Act 1997 (NSW).
2. The Tribunal's role on administrative review is to determine what the correct and preferable decision is having regard to the material before it (s 63(1) Administrative Decisions Review Act 1997). The Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Commissioner's delegate in this case. The Tribunal may decide to affirm or vary the decision, set aside the decision and make another decision in substitution, or set aside the decision and remit the matter for reconsideration by the decision-maker (s 63(2) and (3)).

Tribunal's findings of fact

1. Section 140 of the Evidence Act 1995 sets out the standard of proof required in civil proceedings. Section 140 Evidence Act 1995 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
2. The Tribunal adopts this standard of proof in making its determinations of fact.
3. The Tribunal had before it a copy of a Commissioners Permit under the Weapons Prohibition Act 1998 and Regulation 1999 issued personally to Mr Graham Barry as permit holder and Ms Meacham as an authorised employee on 18 July 2008. Mr Barry nominated Ms Meacham as a close associate/employee in his June 2008 application for a dealer's licence and as a close associate in his July 2013 application.

Suicide at Range September 2013

1. On 2 September 2013 an unlicensed person committed suicide at the range by using a firearm while he was being educated in the use of firearms.
2. Police statements suggest that Ms Meacham was effectively in charge of the range at the time of this suicide. Ms Meacham was charged with the offence, operate approved shooting range contravene conditions. Ms Meacham was found guilty of the offence, but the charge was dismissed with no conviction recorded. Ms Meacham's category ABH firearms licence, high calibre pistol permit, dealers directors authority and firearms safety training instructor approval were suspended on 31 January 2014.
3. On 16 April 2014 Ms Meacham's category ABH firearms licence was revoked on public interest grounds as a result of the incident in September 2013. Ms Meacham's dealers directors authority and firearms safety training instructor approval were also cancelled.
4. However, on 1 October 2014, Ms Meacham's category ABH firearms licence and high calibre pistol permit were reinstated following an internal review of the decision to revoke those authorities. On 22 November 2014 Ms Meacham was issued with a dealers directors authority with Condell Park Indoor firearms range. On 6 December 2014 Ms Meacham was issued with a firearms safety training instructor approval.

Missing firearms September 2015

1. In September 2015 it was discovered that a firearms licence holder's firearm was missing from Condell Park Indoor Firearms Range. The subsequent audit found that four firearms were missing. On 27 October 2015 police and staff in the Firearms Registry attended the Condell Park Indoor Firearms Range. Ms Meacham provided police with a document which detailed 12 missing firearms. During the subsequent police audit, it was established that 21 firearms could not be sighted or accounted for. Ms Meacham's husband Mr Barry was subsequently charged with 21 counts of the offence not prevent theft/loss of firearms - not prohibited firearms/pistol. On 29 October 2015 Ms Meacham's category ABH firearms licence was suspended. On 2 November 2015 Ms Meacham contacted the police having located a firearm in several pieces at the Range. The firearm was found to be unregistered.
2. On 5 November 2015 Ms Meacham's firearms safety training instructor approval was cancelled. On 24 February 2016 Ms Meacham's high calibre pistol permit was suspended. On 25 February 2016 Ms Meacham's dealers directors authority was cancelled. On 2 March 2017 Ms Meacham's category ABH firearms licence and high calibre pistol permit, previously suspended, were now revoked on public interest grounds
3. On 2 November 2017 police conducted a search warrant and located a firearm which had previously been listed as lost from the range. Forensic and ballistic analysis of the firearm identified its use during a shooting homicide in 2016.
4. The Tribunal is satisfied that Ms Meacham was not a director or owner of the business. She was an employee and nominated by Mr Barry as a close associate. Ms Meacham was identified by her son in law Mr Yammine as a part owner of the business. Ms Meacham denied telling attending police that she was an owner of the business. However Senior Constable Jackson was clear in his impression of Ms Meacham's practical management role in the business. She was knowledgeable about its operation and was able to make undertakings about changing its practices. Senior Constable Jackson's statements about his interaction with Graham Barry indicate that Mr Barry became angry and did not have the emotional control to relate with the Police. It appears in these circumstances that Ms Meacham was thrust into the role of being the representative of the business and the decisionmaker in the discussions with Police - although she may not have held the title of manager or director. The Tribunal is satisfied that Ms Meacham was de facto the manager of the business at crucial times.
5. The Tribunal is satisfied that Ms Meacham no longer has a de facto management role.

Consideration

1. The Tribunal is bound by the same legislation the Commissioner applied. The Commissioner has the discretion to refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest (s 11(3) and (7)) Firearms Act.) Public interest is not defined in the Firearms Act.
2. The phrase in the public interest' was considered by the High Court in O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210. In a joint judgment Mason CJ, Brennan J, Dawson J and Gaudron J stated at 216: ...the expression in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only `in so far as the subject matter and scope and purpose of the statutory enactments may enable...
3. The principles of the Firearms Act include that:

• the possession and use of a firearm is a privilege which is conditional on the overriding need to ensure public safety; and
• to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms,

1. The objects include:

• to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances;
• 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;
• to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms; and
• to ensure that firearms are stored and conveyed in a safe and secure manner.

1. The Tribunal considers that each of these principles and objects is relevant to assessing the public interest in this matter.
2. There is discretion with respect to whether to grant the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests
3. The concept of public interest is a broad one. (Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25).
4. That definition has been applied to firearms cases (Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 and Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16.) In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".
5. In Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25] the Tribunal stated that licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them. It is clear to the Tribunal that Ms Meacham has a clear understanding of many aspects of firearms legislation. This was conceded by police witnesses.
6. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. The Respondent has not put Ms Meacham's character in issue. However, the likelihood of public safety risks is to be assessed by reference to the applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182, [41].
7. In Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 (Jameson) the Tribunal referred to the issue of public interest allowing 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].
8. Under s 39 of the Firearms Act 1996 , a person in possession of a firearm must take all reasonable precautions to ensure its safe keeping and that it is not stolen or lost. The knowledge and ability required to safely store firearms, ensure they are not lost or stolen, and comply with registration requirements are relevant to public safety. The Tribunal is satisfied that Ms Meacham possesses a great deal of knowledge about firearms. This was clear both from her own evidence and that of police witnesses. Further Ms Meacham had undertaken a significant number of training courses relating to firearms and also the security industry. All these courses were however undertaken prior to the suicide event of September 2013 and the loss of firearms identified in October 2015.
9. In the matter of Whalan v Commissioner of Police, NSW Police Force [2018] NSWCATAD87 at [54] the Tribunal held that if firearms remain unaccounted for, this is a significant risk to public safety.
10. Ms Meacham's evidence indicated that she initiated and managed the audit process. In these circumstances the Tribunal is satisfied that Ms Meacham bore a significant level of responsibility for the circumstances which led to the loss of approximately 21 firearms. Ms Meacham's evidence did not address how many firearms were eventually found. The Tribunal is left uncertain about this. No analysis was offered to the Tribunal as to what had occurred, or practices adopted to prevent future losses.
11. The Tribunal is satisfied that Ms Meacham carried and exercised a significant level of responsibility for the management of the business. Unfortunately risks to public safety materialised under this management. The shooter was able to commit suicide and a large number of firearms were missing from the facility. One of the risks of inappropriately stored firearms materialised and a lost/stolen firearm was used in a homicide.
12. Also relevant to the public interest is the maintenance of public confidence in the licensing system. See Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. The Tribunal accepts that In the light of the serious outcomes at the Range, members of the public may be concerned about the effectiveness of firearms regulation and public protection if Ms Meacham who was effectively a manager at the Range, were again to be licensed to be in charge of firearms.
13. I accept that there may be a financial impact upon Ms Meacham in not being able to hold a firearms licence for the purpose of work as a security officer. While loss of income is not an irrelevant factor in the exercise of discretion as to the licensing scheme under the Act it is to be weighed against the primary factor of the overriding need for public safety and also against all other relevant considerations: Bevan v Commissioner of Police [2004] NSW ADT 1 at [26].
14. Consequently, for reasons of public safety and public confidence in the licensing system, I consider that issue of the licence to Ms Meacham at present would be contrary to the public interest.

Decision 1. The Respondent's decision to refuse the Applicant an ABH licence 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: 19 September 2019