Rolls v Commissioner of Police

Applicable legislation

1. Section 11(7) of the Act relevantly provides that "the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest."
2. Section 3(1) of the Act provides guidance as to how the Act is to be administered which declares that firearms possession and use is "conditional on the overriding need to ensure public safety".
3. It is in this context that the Commissioner's power to refuse to issue a licence must be applied and to determine whether considerations of public interest or concern for public safety justify the refusal.
4. Accordingly, the issue to be addressed by the Tribunal involves considerations of public interest including whether any concerns for the risk of public safety justify the refusal. However, it is necessary to adopt a balanced view of any identifiable risk bearing in mind all relevant circumstances: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] (Webb)
5. The Applicant's application for review of the of the Commissioner's refusal is pursuant to s 75(1)(a) of the Act and s 55 of the Administrative Decisions Review Act 1997 (ADR Act).

Tribunal review

1. The Tribunal has jurisdiction to hear and determine this application by reason of s 75(1)(a) of the Act and s 9(1) of the ADR Act. Pursuant to s 63 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).

Evidence

1. In addition to the oral submissions made on behalf of both parties and the material lodged by the Commissioner pursuant to s 58(1) of the ADR Act, the Commissioner relies upon his written submissions dated 16 November 2021.
2. The Applicant relies on the Applicants' Statement filed 21 October 2021 as well as a letter dated 11 June 20020 from Michel White lawyers to the NSW Police Force attaching several character references of the Applicant and two "Good Neighbour" Awards awarded to the Applicant
3. Additionally, the Applicant was cross-examined during the hearing by the Commissioner's representative and gave evidence orally.

The Commissioner's submissions

1. In making the case that the Commissioner's decision to refuse the Applicant's application for a Category AB firearms licence under s 11(7) of the Act is correct and preferable, the Commissioner drew the Tribunal's attention to the following contraventions of the Applicant: 1. the Applicant possessing and using a stolen firearm without approval; 2. the Applicant possessing two silencers being a prohibited weapon requiring a licence under the Weapons Prohibition Act in circumstances where the Applicant was unlicenced; 3. the Applicant not complying with the safe storage requirements for firearms, ammunition and the safe storage receptacle; and 4. the Applicant providing false answers on his applications for a personal firearms licence in not disclosing his treatment for depression.
2. The Commissioner also submitted that in respect of the contraventions described at (1) and (2), it is unknown how long those contraventions subsisted given that the information provided by the Applicant is "at best vague". As submitted on behalf of the Commissioner, this inadequacy of information precludes the Commissioner from carrying out enquiries to confirm the circumstances of the acquisition of the stolen firearm and silencers or the period that the Applicant was using the prohibited weapons without a licence.
3. Based on these circumstances, the Commissioner makes the submission that the Applicant's contraventions demonstrate a failure to comply with his obligations in circumstances where he should have been well aware of those obligations. The Commissioner further submits that the Applicant's conduct evidence a disregard for the provisions of the Act. According to the Commissioner, the Applicant's history of continued and multiple contraventions supports that an unreasonable risk to public safety would be created if he was authorised to possess and use a firearm: section 11(7) of the Act.
4. Additionally, the Commissioner drew the Tribunal's attention to the Applicant's treatment for depression in circumstances where no medical evidence has been provided by the Applicant to confirm why the Applicant has been prescribed such medication, the extent of the depression and how it may impact his ability to safely possess and use firearms.

The Applicant's submissions

1. On 11 June 2020, the Applicant's (then) legal representative submitted a letter seeking an internal review. The letter outlined reasons why the Applicant should be issued a firearms licence being: 1. the Applicant received no criminal conviction and has no criminal history; 2. the Applicant has learnt a salutary lesson; 3. the Applicant takes his legal obligations seriously, and the Commissioner could be assured that the Applicant would comply with all requisite regulations in the future; 4. reliance on a number of character references however, none of these references acknowledged the charges brought against the Applicant; and 5. two "Good Neighbour Award" certificates.
2. On 21 October 2021, the Applicant lodged written submissions with the Tribunal. These submissions provided a response to the submissions lodged on behalf of the Commissioner with specific regard to the circumstances surrounding the Applicant's depression diagnosis which in summary was that: 1. the Applicant worked all of his life and when he was informed he was unable to work again due to work related injuries, he went into a slight depression; 2. the Applicant's doctor advised antidepressants would help the Applicant to maintain his pride of being unable to support his family; 3. after being prescribed antidepressants, it helped the Applicant cope and allowed him to maintain his dignity and gave him back his pride despite his inability to support his family; 4. the Applicant was on the disability support pension until the age of 66 years old, when he then started to receive the age pension; and 5. the Applicant has never been diagnosed with mental health problems apart from slight depression.
3. Additionally, the Applicant drew the Tribunal's attention to the "Good Neighbour Award" certificates and informed the Tribunal that he is not a threat to the community and loves his family.
4. In respect of the storage of the Applicant's firearms the Applicant described an alarm system and that he had acquired a new gun safe which had been secured by nuts in the floor and wall. According to the Applicant the safe is "bolted down properly" and it cannot be unbolted.

Consideration

1. The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing.
2. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
3. In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety., the Commissioner referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ("Ward") in the context of submitting that the appropriate test in the circumstances of this case is that I must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, 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 at [7] 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 Act and comments in cases should not be substituted for those tests.
4. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.
5. Rather, as stated in Webb at [32] when considering the question of 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. In applying these principles in determining the public interest, I accept as a preliminary issue that the Applicant's interest in shooting is a long-standing one. He also has an interest to have a licence as a volunteer in vermin control. I also accept that the character references support that the Applicant is a generous, kind and helpful neighbour who contributes to his local community.
7. However, as stated in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [92]: Private interests, however, are not the only matters to be taken into account and the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an 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 at [33]. The concept includes 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] VicRp 6; (1991) 1 VR 63.
8. Accordingly, the Applicant's genuine reason for holding a firearms licence and the positive impressions he has left on his neighbours and friends cannot be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".
9. In considering the public interest, I have given consideration to the following oral evidence of the Applicant in respect of the factual allegations made in this matter which I describe below.
10. In respect of the silencers and the stolen firearm, the Applicant's evidence was contradictory. At times, he indicated that he had placed the stolen firearm and silencer in his gun cabinet and "forgot about" them for approximately five years while at others, he indicated that he used the firearm and at least one of the silencers to shoot rabbits and other animals that needed to be euthanised. He explained that he kept the firearm with a silencer in his car for this purpose.
11. Additionally, the Applicant described lending the stolen firearm and silencer to a friend. There is no evidence before me as to whether this "friend" was licenced to carry a firearm at all. In any case, while the stolen firearm and silencer was in his friend's possession, the Applicant's friend committed suicide with a firearm (although the Applicant contended that it was not with the stolen firearm). The Applicant described collecting the firearm from his friend's house prior to the arrival of the police and it was after collecting it that he placed the firearm into his safe, forgot about it until the time he sought to have it registered. The Applicant informed the Tribunal that he did not inform the police at the time of his friend's suicide that his friend was in possession of his firearm.
12. In respect of his contraventions of the Weapons Prohibition Act, the Applicant indicated that he did not know that he needed a licence for a silencer however the Applicant also admitted that he knew he was not meant to have a silencer but did not know why. However, the Applicant also denied intentionally removing the silencer when he sought to have the firearm registered because of this knowledge and rather it was because the silencer was "not part of the gun". I do not accept the Applicant's evidence that he removed the silencer because it was not part of the gun and I find that its removal was consistent with knowledge that the silencer was prohibited and its removal was to ensure that his possession of this prohibited weapon did not come to the attention of the police.
13. In respect of the Applicant's knowledge that he should not be in possession of the stolen firearm, on the one hand he admitted in his statement in respect of the acquisition of the firearm that: "I knew it was probably too good to be true"
14. While admitting this, he simultaneously denied any knowledge of wrongdoing in having the firearm because he believed the "old guy" when he stated that it was not stolen. This is also despite not making any attempt to have it registered until the 2017 Firearms Amnesty. In this respect, the Applicant contended that the timing of his attempt to register the firearm was purely coincidental and not evidence of suspicions or knowledge of any wrongdoing in being in possession of it. I also reject this contention. I accept, as submitted on behalf of the Commissioner, that the fact that the Applicant attempted to register the firearm during the Firearms Amnesty is consistent with his knowledge that the origin of the firearm was, likely, dubious. Such finding being consistent with the Applicant's acknowledgement that he thought its acquisition was "too good to be true".
15. The Applicant denied filing off the serial number on the firearm but did not provide an explanation as to how or when the serial number was filed down but rather indicated that he had not noticed that it was filed down.
16. In respect of the Applicant's safe, the Applicant gave evidence that he had installed this safe himself using screws five inches long with only three screws in the floor without also securing the safe to the wall. He denied that the safe was able to be rocked back and forth at the time of the police inspection in February 2018 but accepted that the way he had installed the safe was incorrect and non-compliant arising from his failure to check any of the requirements of installation and rather, installing it "just as [he] thought".
17. In respect of the firearm being loaded when the police conducted their inspections, the Applicant acknowledged that he knew that the firearm should not be loaded and indicated that he thought it was empty but admitted that he had not checked the gun since collecting from his friend's residence because "he did not think [his friend] would have left it loaded".
18. In respect of the live ammunition the police discovered during their inspection which was not secured in the safe, the Applicant's evidence was that he was "pretty certain" that the box was a box of empty shells. Given that the Applicant was only "pretty certain", inherent in this evidence is that the Applicant accepted that there was at least a possibility that the ammunition found by the police which was not properly secured and was live ammunition.
19. In respect of the questions relating to treatment for depression on the Applicant's application forms, he accepted that the answer in each case should have been "yes" but that he had thought it was answering truthfully as had not considered that the tablets were "treatment" at the time of answering the questions and that the medication was doing its job in any case. In this regard, I do not find that the Applicant was intentionally dishonest but rather, that the Applicant had a degree of carelessness in completing these official documents.
20. Accordingly, it is not in dispute that: 1. the Applicant acquired a stolen firearm in circumstances in which he suspected that its origin was probably dubious. 2. the Applicant possessed and used a stolen firearm without approval for at least five years or perhaps longer; 3. the Applicant possessed two silencers and used at least one of those silencers being a prohibited weapon requiring a licence under the Weapons Prohibition Act in circumstances where the Applicant was unlicenced and this state of affairs subsisted for five years or perhaps longer; 4. the Applicant provided the stolen firearm and a silencer to another member of the public for their use where that third party may or may not have been licenced and who caused himself self-harm while the firearm was in his possession; 5. although the Applicant may have made changes to the manner in which the Applicant stores his firearms, the Applicant failed to comply with the safe storage requirements for firearms, ammunition and the safe storage receptacle. In this respect the Applicant made no inquiries to ensure that the installation of his storage arrangements was compliant when originally installed; and 6. the Applicant provided incorrect answers on his applications for a personal firearms licence on two occasions in not disclosing his treatment for depression. As noted above, while the Applicant was not intentionally dishonest in this respect, these circumstances evidence the Applicant's carelessness in completing these official documents and a disregard to the importance of providing accurate information to the Commissioner.
21. Accordingly, the Applicant's conduct evidence contraventions in respect of the acquisition of a firearm, the use of that firearm, the storage of firearms, the distribution of a firearm and the provision of information relating to firearms.
22. In my view, it is apparent from the Applicant's own evidence of his conduct that he does not understand his obligations as a licensee, and I have serious concerns about the Applicant's appreciation of the importance of strict observance of his obligations.
23. This provides sufficient cause to warrant the decision to refuse him a firearms licence. However, I further find that the Applicant's history of continued and multiple contraventions supports that an unreasonable risk to public safety would be created if he was authorised to possess and use a firearm: section 11(7) of the Act. In this regard, there is an appreciable and real risk that the Applicant's attitude towards his obligations, as evidenced by his conduct, are inconsistent with the objects of the Act and the conditions of his licence. That being the case, it is my view that it is contrary to the public interest that the Applicant holds a firearm licence.
24. In my view, it is appropriate that the Applicant have some time without a firearms licence in which he focuses his mind on the underlying principles and objects of the Act and the need for strict compliance with his obligations as a firearms licensee.
25. It follows in my view that the correct and preferable decision is to refuse the Applicant's firearms licence. Accordingly, I affirm the Commissioner's decision.
26. I am unable to provide any specific guidance as to what I would consider to be sufficient to dispel my concerns. However, I suggest that the Applicant take positive steps to re-educate himself in regard to the legislative regime governing the use of firearms in this State and the importance attached to the obligations as a firearms licensee.

Orders 1. The decision to refuse the Applicant's firearms 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: 12 January 2022