Mills v Commissioner of Police, NSW Police Force

The Law

1. The underlying principles of the Act are outlined in section 3. Relevantly they are: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety: 3. by imposing strict controls on the possession and use of firearms, and 4. by promoting the safe and responsible storage and use of firearms.
2. Sub-section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Sub-section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Firearms Regulation 2006 (the Regulation), whether or not the licensee has been convicted of an offence for the contravention. Sub-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 states 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.

Tribunal review

1. The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(a) of the Act and s9(1) of the Administrative Decisions Review Act (NSW) 1997 (ADR Act). Pursuant to s63 of the 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.
2. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).

Non-compliance with safe storage requirements

1. The Respondent submits that the evidence supports that: 1. The Applicant knew he should have stored his firearms in a safe and not in his shed or personal vehicle but was reckless towards the strict safe keeping requirements imposed by the Act; and 2. The Applicant cannot be trusted to comply with the safe storage regulations.
2. In this respect, the Respondent contends that the CRO is an offence contrary to s 39(1)(a) of the Act and is therefore a prescribed offence for the purpose of s 11(5)(d)(iii) of the Act. As a result, at the time the Decision was made and until 4 June 2024 (when the CRO expires), the Respondent was and is required to refuse any application made by the Applicant for a firearms licence. While the decision to revoke a firearms licence remans a discretionary one, the Respondent relies on authorities that in circumstances where it would be required to refuse to grant a firearms licence, the power of revocation should be exercised unless there are "special or exceptional circumstances": Mills v Commissioner of Police, NSW Police Force [2014] NSWCATAD 38. The Respondent submits that the present circumstances are neither special nor exceptional with the Applicant committing fundamental breaches of the Act in circumstances where he knew that his firearms should not be: 1. Left unattended in an unlocked shed; and/or 2. Stored in an unattended vehicle.
3. Rather, the evidence supports that the Applicant's offences are not trivial or excusable but show a concerning course of conduct noting that the Applicant's Driving CRO expired approximately only a week prior to the conduct of the Applicant's which resulted in the CRO.
4. The Respondent argues that the Tribunal ought to be of the opinion that the Applicant is not a fit and proper person to hold a licence and it is not in the public interest for the Applicant to continue to hold a licence.
5. In response, the Applicant accepts that he failed to safely secure a firearm which he understands is a breach of the Act. In this respect, the Applicant speaks of his remorse. The Respondent relies upon the following evidence in chief including a statement of the Applicant of 22 October 2023 and a statement of the Applicant's wife of the same date: 1. The Applicant's wife states that she is unable to specifically remember what it was from my phone conversation with her husband that made her so upset to attend the police station and believes it was her pregnancy hormones that made her more sensitive. She describes the involvement of the police as an overreaction. 2. The Applicant and his wife both inform the Tribunal that they have taken proactive steps to work through their issues and strengthen their relationship and will continue to do so. 3. The Applicant was not charged with any offence related to the firearm in the car. 4. The Applicant acknowledges the "inconsistencies of my previous statement" and accepts that the accuracy of his recollection had been affected by the stress of his child and the ongoing stress of the situation. 5. The Applicant had voluntarily participated in an advanced firearms training course to better educate him on firearms obligations and compliance. 6. The Applicant relies upon his otherwise record of good conduct (apart from the traffic offences) and informs the Tribunal that he takes great pride in his personal and professional reputations. In this respect, the Applicant relied on various references from his wife and others that speak of his good character. Additionally, character references were contained in the s 58 Bundle.
6. The Applicant also relies on the following evidence in reply: 1. the Applicant's wife disputes that the description of her representations to the police on 29 November 2022 is as set out in the police report and specifically denies that she had found evidence of the Applicant cheating on her rather, the Applicant's wife states that she found evidence that the Applicant had been in contact with a friend of the Applicant's wife but it was a misunderstanding. 2. The Applicant's wife denies that she was ever concerned that the Applicant would use firearms against her or himself and denies telling the police that - rather she was only concerned about the Applicant's safety. The Applicant's wife never thought it necessary that the firearms be removed when it was suggested by the police. 3. The rifle in the shed was not in plain sight but around the corner of the shed purlin. 4. The Applicant denies that the firearm in the vehicle was visible from outside of the vehicle as it was located behind the rear seat. 5. As for the events of that evening, the Applicant alleges that: Police attended our house within a couple of minutes of us returning home. [The Applicant] had brought pizza into the house for a family dinner and was on his way back to the car to remove the firearm and safely secure it when police arrived. We live at the end of a 5km dirt road, with a 200m dirt driveway, not in a residential suburb where there is passing traffic or pedestrians. Our only child home at the time was inside waiting for dinner, the other child was on a school camp. 1. The Applicant denies that he indicated to the police that he was going to leave the firearm in the car overnight but that he was on his way to safely secure it. 2. The Applicant did not harm or kill a snake as the snake had moved.
7. The Applicant also relies upon the course undertaken by the Applicant in firearm compliance and safety. The Applicant contended that the Tribunal should find that whatever limitations existed with respect to the Applicant's knowledge prior to that course, were resolved and the Tribunal could have confidence that the Applicant would conduct himself consistently with his obligation in the future if licenced.

The Applicant's Traffic History

1. The Respondent refers to the applicant's poor driving history of traffic infringements between the years 2006 to 2022 leading to the Applicant's driver's licence being suspended on four occasions. A traffic record report was provided with the documents which were produced by the respondent pursuant to s58 of the ADR Act which identified the offences described above.
2. The Respondent made submissions that these matters, over a significant period of time, demonstrate an inability to appropriately and seriously consider and observe legal regulations which are imposed for public safety purposes.
3. The Applicant acknowledged that he had multiple traffic infringements, but the infringements had reduced over time because of his increased appreciation of the importance of compliance contributed to by undertaking the Traffic Offender Intervention Program on 30 April 2022. The Applicant drew the Tribunal's attention to the fact that the Applicant has had no further traffic infringements since completing that course. In addition, oral submissions were made at the hearing that while there was an acknowledgement of the Applicant's poor driving history, it was not the type of history that would raise concerns regarding his ownership of firearms and that apart from the events of 29 November 2022, the Applicant had never come to the adverse attention of the police with respect to his use and storage of firearms.

Allegation of further offences and conduct: Contravention of non-commercial transportation, firearm visible from outside of vehicle and allegations related to shooting a snake

1. The Respondent contends that it is open to the Tribunal to find that the conduct of the Applicant could amount to additional offences. In this respect the Respondent submits "there are at least two further offence that occurred which constitute breaches of the Firearms Act". Specifically, these alleged offences are: 1. The storage of a firearm in a soft bag in an unlocked vehicle in contravention of s 39 of the Act with the potential offence relating to the non-commercial transportation; 2. Contravention of clause 149(1)(c) of the Regulation based on the "possibility" that the firearm was visible from outside the vehicle; and 3. Harming or attempting to harm a "protected animal" being an offence contrary to cl 2.1 of the Biodiversity Conservation Act 2016 (NSW).

Non-compliance with safe storage requirements

1. It is not in dispute that the Applicant is the subject of a CRO. I accept as submitted by the Respondent that while the decision to revoke a firearms licence remans a discretionary one, the power of revocation should be exercised unless there are "special or exceptional circumstances": Mills v Commissioner of Police, NSW Police Force [2014] NSWCATAD 38. In that decision, it was held at [41]-[42]: Given what has transpired it is possible that the Applicant would be more alert to safety issues in the future and therefore that he is more likely to store his firearms safely in the future. However, I agree with the views expressed in Maloney v Commissioner of Police of Police, where Higgins JM stated in relation to this legislation: "In my opinion, the inference to be drawn from this provision is that a conviction for a prescribed offence operates to remove the privilege to have a firearms license as public safety is placed at risk. Furthermore, that privilege is lost for a period of ten years following a conviction. Although the Commissioner has a discretion in this regard where the conviction occurred after the license has been issued, in my opinion, it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the license. ... these offences form a basis of a mandatory refusal of an application for a licence. This means that even if Mr Maloney's license were to be restored, after 2007 when he would be required to reapply for his firearms license, the Commissioner would have no alternative but to refuse a renewal of his license. As I have already said, in my opinion parliament has made it quite clear that conviction for such offences result in the loss of the privilege of having such a licence unless there is some special circumstances that justify a contrary decision. In my opinion, in this case there are no special circumstances." In my view, this is the correct approach. It would be anomalous if a conviction, after the licence has been granted, were treated totally differently to a conviction before a licence application. It will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence.
2. I do not accept that the present circumstances are special or exceptional. In that respect, the Applicant has sought to rely upon evidence that supports that the risk arising from his breaches of the safe storage requirements was reduced or made trivial by his circumstance. In this respect: 1. first, the Applicant denies that the firearm was visible in his car and alleges that the firearm that was in the shed could not be seen when entering the shed; 2. secondly, the Applicant alleges that he was on his way to remove the firearm from his vehicle and return it to the gun safe when the police arrived having just delivered a pizza to his wife and child; 3. thirdly, he alleges that he never represented to the police that the firearm would stay in the vehicle overnight and that, in fact, he was on his way to collect the firearm as noted above.
3. With respect to the denial that the firearm was visible in his car and the allegation that the firearm that was in the shed could not be seen when entering the shed, I find that even if these factual allegations were accepted, neither make the conduct trivial or excusable.
4. With respect to the other allegations, while I accept that the Applicant and the Applicant's wife regret the events of that day, I put little weight on the accounts given by way of their statements due to the inconsistencies as between the information given to the police as evidenced by the body worn footage, the information given to the Respondent for the purposes of the internal review, the information relied upon as evidence in chief and in reply before this Tribunal. In this respect, the Respondent identified inconsistencies in the internal review as noted above but I also find as follows.
5. I reject the Applicant's new allegation of being in the process of returning to the car to retrieve the firearm after delivering a pizza which contradicts the body worn footage as well as the information provided to the Respondent for the purposes of the internal review. These allegations being raised for the first time in the Applicant's evidence in reply.
6. With reference to the body worn footage, I find that the plain meaning of the Applicant's representation to the police on the evening of 29 November 2022 was that the firearm was in the car because he was going to drop the firearm off to a different place the following day meaning that the intention was that the firearm would remain overnight. That interchange was as follows: S/Cst Sykes: Where are your firearms stored, mate? Applicant:: Uh in the safe in the garage S/Cst Sykes: Yep Applicant: Ah actually there was one in my Ute that I was going to drop off to a... [indiscernible] S/Cst Sykes: Oh okay when are you going to do that Applicant: Ah will l'm heading to um going to head to Narabi tomorrow,
7. Irrespective of the fact that the Applicant did not expressly state "… and I intended to leave the firearm in the car overnight" or words to that effect, I find that the interchange was an admission by the Applicant that he intended to leave the firearm in the vehicle overnight. There would be no reason for the Applicant to explain his plans for the following day in the context of the conversation other than to justify why the firearm was in the vehicle.
8. With respect to the information provided to the Respondent for the purposes of the internal review, I find that these allegations also sit uneasily with that information. Specifically, the allegation made by the Applicant that prior to the police arriving, the Applicant and the Applicant's wife had shortly returned from the park where they were having a discussion with no mention of a pizza delivery or allegation that the Applicant was returning to his car when the police arrived.
9. Lastly, with respect to the Applicant's wife's evidence, despite giving evidence in chief that she could not recall what motivated her to speak with the police, in reply, the Applicant's wife disputes the description of her representations to the police on 29 November 2022 is as set out in the police report and specifically denies that she had found evidence of the Applicant cheating on her despite then going to the police. This initial lack of recollection followed by a recollection of specific details is contradictory and I put little weight on her evidence.
10. I do not accept that the course undertaken voluntarily by the Applicant in firearm compliance obligations is an intervening event such that the knowledge of the Applicant has been supplemented which eradicates the risk. I do not accept that this is a circumstance where the Applicant was labouring under a mistaken belief as to his obligations as supported by the conversation with the police when they attended his home. I accept the contention of the Respondent that the evidence supports that the Applicant committed fundamental breaches of the Act in circumstances where he knew that his firearms should not be left unattended in an unlocked shed or stored in an unattended vehicle. The breaches did not occur because of a lack of information but because of a disregard for their implementation.
11. Nor am I persuaded by the character references. While I accept that the Applicant has made good impressions on his friends and neighbours, I am not persuaded that this is sufficient to make the Applicant's circumstances "special or exceptional" so as to challenge the revocation where he is subject to a CRO.
12. I find that the Applicant has not referred to any exceptional or special circumstances. I agree with the Respondent that there are no exceptional or special circumstances that would warrant the Applicant retaining his firearm licence.

The Applicant's Traffic History

1. With respect to the Applicant's traffic offences, the Tribunal rejects the Applicant's submissions that the traffic offences are irrelevant or should be given little to no weight given that they are unrelated to firearms.
2. In Tannous v Commissioner of Police [2011] NSWADT 116 at [32] the Tribunal held that repeated breaches of traffic laws and regulations which like the regulation of firearms, are aimed at ensuring public safety, can be potentially relevant. The conduct in relation to traffic offences may indicate an inability to respect authority and observe legal regulations which are imposed for public safety. Such conduct may indicate a lack of responsibility when it comes to public safety. In that case the Tribunal ultimately found that it was not in the public interest for that applicant to hold a firearms licence. In arriving at the decision, the Tribunal regarded that the applicants repeated breach of traffic laws and regulations indicated a disregard for a regulatory scheme which is aimed at ensuring public safety. Such reasoning is consistent with the breadth of the Commissioner's discretion and the overriding object of public safety.

Allegation of further offences and conduct: Contravention of non-commercial transportation, firearm visible from outside of vehicle and allegations related to shooting a snake

1. I reject the Respondent's submissions that the Tribunal should find that the Applicant is guilty of further offences either with respect to the Act or the Biodiversity Conservation Act 2016 (NSW). It would be inappropriate for the Tribunal to make such findings. It is not necessary for me to determine if the Applicant was, even on the balance of probabilities "guilty" of the charges against him; I am to consider the conduct that gave rise to those charges. Even if that was incorrect, there is insufficient evidence before me, even on the civil standard to satisfy me of: 1. the "non-commercial transportation" for the purposes of s 39 of the Act; 2. whether the firearm was visible from outside the vehicle for the purposes of clause 149(1)(c) of the Firearms Regulations which the Respondent only describes as a "possibility"; and 3. a breach of the Biodiversity Conservation Act 2016 (NSW) where there is no evidence that the snake was a snake native to Australia or that periodically or occasionally migrates to Australia which is necessary for the purposes of being a "protected animal" for the purposes of the Biodiversity Conservation Act 2016 (NSW).

Other matters

1. As for the motivation of the Applicant's wife to attend the police station and whether any of the concerns that she may have are a basis to find that the correct and preferable decision is to revoke the Applicant's licence, the evidence does not allow me to make such findings.
2. In this respect, the Applicant's wife gives evidence that she was never concerned that the Applicant would use firearms against her or himself and denies telling that to the police. Rather, her evidence is that she was only concerned about the Applicant's safety. This is difficult to follow. The point appears to be that the Applicant's wife was concerned about the Applicant self-harming but did not believe that any self-harm would be with a firearm. If this is correct, I do not find this persuasive however given the subsequent denials of the Applicant's wife and the ambiguity as to her motivations in attending the police station, the evidence is insufficient for me to make positive findings as to the reasons for the Applicant's wife attendance or whether those reasons were justified. It is unnecessary to come to a view with respect to those matters in any case, given the subsequent breaches of the Applicant's safe storage obligations in the circumstances and given the findings made as set out above.
3. However, as the allegations include a fear of domestic violence, at least as recorded in the police reports (but denied by the Applicant's wife), I find that it is appropriate that the Applicant's name is anonymised, and the Applicant and his wife's names are not disclosed and I make an order accordingly.

Conclusion

1. Considering all relevant considerations, the Tribunal finds that the Applicant is not a fit and proper person to hold a licence and it is not in the public interest for the Applicant to continue to hold a licence.
2. The Tribunal makes the following findings: 1. The Applicant has had a history of continual and significant traffic infringements. The Applicant submitted that they are reducing since undertaking a Traffic Offender Intervention Program on 30 April 2022. Despite Applicant having had no further traffic infringements since completing that course, that course was completed less than two years ago and does not represent a sufficient amount of time to demonstrate a material change. His driving history demonstrates he has previously had gaps of years without infringements and then an infringement to follow. Some of the offences are repeated such as driving with a mobile and speeding. The Tribunal finds that the Applicant's traffic history does demonstrate an inability to follow regulations which are imposed for public safety, 2. The Applicant is the subject of a CRO. I find that the Applicant has not referred to any exceptional or special circumstances. I agree with the Respondent that there are no exceptional or special circumstances that would warrant the Applicant retaining his firearm licence.
3. The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasis that strict controls on the possession and use of firearms are imposed for this reason. The Tribunal is satisfied that the decision to revoke the licence was the correct and preferable decision and affirms the decision. The orders are made accordingly.

Order 1. The decision under review is affirmed. 2. Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) by order of the Tribunal previously made, the publication or broadcast of the name of the Applicant and the Applicant's wife is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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

Amendments 29 January 2024 - Anonymisation error amended paragraph [18] 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 January 2024