Ryan v Commissioner of Police, New South Wales Police Force

Applicable legislation

1. The placing of special conditions on firearms licence is governed by s 19(1) of the Firearms Act which provides that "A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose". The power is discretionary.
2. The issue in this case is therefore whether the correct and preferable decision is to uphold or set aside the decision imposing the condition prohibiting firearms use on the Ingleside property.

The evidence

1. The respondent called no oral evidence (subject to one question asked at my request which is referred to below), instead relying on the documentary evidence, including the s 58 documents (exhibits R1 and R2).
2. At the hearing the applicant adopted his signed statement dated 16 May 2023 which stated that, apart from the reports alleging that he was firing a firearm through trees on his property, he agreed with the documents contained in the s 58 documents and on the recorded footage concerning the police investigation of those allegations.
3. He stated that exhibit R1, pp 23 - 24, showed his P661 genuine reason form, which he filled out and signed on 19 November 2017. In the section headed "Permission from owner or occupier of rural land" he had filled out that section so as to be authorized to shoot on his property.
4. As a result of the police investigation, it was brought to his attention that that portion of the form had been crossed out and appeared to have been initialled "LOA". He had not crossed out that section of the form and to his knowledge he had been authorized to shoot on his property at the time the police were called there.
5. During the time he had been shooting on his property to control vermin and to sight in his firearms, no rounds of fired ammunition had left the property and no persons had been struck by any ammunition. There is a large rabbit population that comes onto his property, especially from recent road construction, and that also brings foxes with it. He needed to be able to use his firearms to control those vermin.
6. In oral evidence at the hearing the applicant said the property measured 5½ acres (2.2 ha) and contended that while he understood the respondent's concerns, a .22 bullet would only travel outside the property if there had been unsafe use. Safety depended on proper use. He used only a .22 on that property, and the force of a bullet of that calibre dropped by half over 100 yards. The closest road to where he had been sighting the rifle was about 220 m away.
7. When he was zeroing (sighting) a rifle, he used a concrete barrier measuring 600 X 600mm X 1.2 m, and behind that there was a berm 2 m high, and there were two 8 ft shipping containers behind that. He had also done vermin control shooting at the request of neighbours on their properties. His own property measures 5½ acres, and the Firearms Registry had said that the minimum size for a licence based on vermin control was 5 acres. He had a right to protect his property, and rabbits had been pushed away from bushland because of work on Mona Vale Road. After the rabbits came the predators, and he was seeing foxes the size of dogs.
8. The Firearms Registry had removed the licence condition following representations by his lawyer. As the condition had been removed, he could have simply done nothing and continued as before, but he wanted clarification.
9. Cross-examined by Mr Pobrezny, he said the roadworks had begun in 2018 or 2019. The rabbits and foxes were now much worse. He acknowledged that an inadvertent error was possible, but pointed out that the berm measured 40 feet by 40 feet. Vermin do move, but in accordance with ethical hunting standards, he did not attempt a shot at a moving target as the risk of wounding the creature was greater. Exhibit R3 annexure A showed his shooting position and the safety backstops.
10. Asked whether he could use a smaller calibre shotgun instead of a rifle, he expressed doubts, saying that he could be more accurate with a .22 than with a shotgun. In a controlled space, his accuracy would be better, and he preferred to use a .22 for vermin because it was safer and quieter.
11. At that point I asked Mr T P Berry, who prepared the respondent's expert certificate, if he had prepared any range estimates for shotgun rounds, as none were mentioned in exhibit R5. Mr Berry pointed out correctly that such information was given in his expert certificate (exhibit R4).

Applicant's submissions

1. In written submissions filed on 27 June 2023 the applicant contended that he had been cooperative with police during the investigation into the incident on 7 August 2021 and was shown to be responsible regarding his use of the firearm and its safe storage. The investigating police appeared to have no concerns regarding the use of the firearm on the property after being shown around by the applicant.
2. Until that time when police investigated the use of the firearm on the property, the applicant had been using it for the purpose of sighting it in and also for the control of rabbits and foxes, which he genuinely believed he was authorized to do. It was submitted that there was no evidence that any projectiles from any firearm used by the applicant had inadvertently left the property and caused any injury, death or damage to other property.
3. The applicant submitted that as a result of his experience with firearms and the protective measures in place around his property, there was virtually no risk to the public that projectiles would inadvertently leave the property. The Commissioner's decision to place a condition on his licence preventing him from using firearms on his property was not the correct or preferred decision and should be set aside and the condition removed.
4. In oral submissions at the hearing the applicant said he knew the identity of the unnamed person who had made the complaint about hearing shooting or 7 August 2021. He had given that person a job, trained him and given him the use of a cabin on the property, but he had been "doctoring his hours" and had made false allegations about threats. He was an opportunist who had left the applicant's employ. That had been the start of the whole scenario.
5. The diagrams showing the range of the various types of firearm were correct, but he would not shoot like that. There were risks involved in almost everything, such as driving a truck. The reviewable decision had taken away his rights. In the area there were 20 other people who had firearms licences. He would never use centrefire rifles on the Inglewood property. He never carried a firearm when loaded and did not chamber a round until he was looking through his telescopic sight. He did not take dangerous shots but adhered to the principles of ethical hunting, such as not shooting at a moving target.
6. The question of safety came down to the user and as there was always some risk, it was a matter of what was an acceptable risk. To completely eliminate risk, everyone's licence would have to be taken. He simply wanted to be treated fairly.

Consideration

1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act (CAT Act) (s 30) and the Firearms Act, including a condition imposed by the Commissioner on a licence or permit issued to the person: s 75(1)(b). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
3. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
5. The power to impose conditions is discretionary: Wallin v Commissioner of Police, New South Wales Police Force [2021] NSWCATAP 368, [31]. The discretion should be exercised in a way that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50, [23].
6. In Wallin v Commissioner of Police (No. 2) [2022] NSWCATAD 83, the tribunal had this to say about conditions: [36] The appropriateness of a special condition on a firearms licence as a function of the public interest. In the context of firearms licensing, the overarching component of the public interest is public safety…. [58] Restrictions imposed by a special condition should not go further than is required for the protection of public safety. The issue to be addressed is therefore whether considerations of public interest, or a concern for the risk to public safety, justified the imposition of the special condition. That is to say, whether the inconvenience suffered by the applicant as a consequence of the imposition of the special condition was necessary to ensure public safety: Mulligan v Commissioner of Police and paragraph [26].
7. In determining risk to public safety in the context of imposition of a condition, only real and appreciable risks need to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Mulligan v Commissioner of Police [2020] NSWCATAD 272, [58].
8. The respondent submitted that there would be a significant risk to public safety if Mr Ryan were permitted to use firearms on the Ingleside property. In support of that proposition, the respondent relied on the Berry Report (exhibit R4) and the Bush affidavit (exhibit R3).
9. Mr Paul Bush is a solicitor in the office of the police general counsel and holds the rank of inspector. On 1 June 2023, he caused the Crown Solicitor's Office to obtain maps of the Ingleside property, as well as of the surrounding areas, marked with the effective and maximum ranges of the cartridges utilised in the firearms owned by the applicant. In doing so he relied on the information in the expert certificate of Timothy Berry, of 19 May 2023. Copies of the maps showing the outlines of the applicant's property were attached as annexures.
10. In his view those maps marked with the effective and maximum ranges of the cartridges used in the firearms owned by the applicant demonstrated the risk to public safety if the applicant were permitted to shoot on that property, because there was always a real possibility for human error and unintentional discharge when firearms are being used. In other words, he considered that the diagrams underscored the real risk that in using firearms on the property, the applicant might accidentally or unintentionally cause bullets to travel significant distances into the suburbs surrounding the property.
11. Mr Timothy Berry is a scientific officer, forensic ballistics investigator and a forensic firearms examiner. He has specialized knowledge based on his training, experience and study of those subjects. Having received a request for technical data about the effective and potential total ranges for the six calibres of the applicant's firearms, he pointed out in his expert certificate dated 19 May 2023 (exhibit R4) that maximum range is defined as the greatest distance a projectile can travel when fired at the optimum angle of elevation of the barrel.
12. Effective range is the distance at which a projectile can be expected to be useful in its intended purpose. After defining some other relevant parameters, Mr Berry explained that optimum angle for maximum range is set at approximately 33°.
13. The effective and maximum range of the .357 Magnum cartridge was estimated at 182.8 metres and the maximum range at 1719.0 m. The effective and maximum range of the .22 Long Rifle cartridge was 182 m and the maximum range 1709.9 m. In the case of the 9.3 X 74R mm cartridge, the effective range was 914.4 metres and the maximum 3471.7 m. The effective range of the .223 Remington was 914.44 m and the maximum 3194.2 m. The .300 Winchester Magnum had an effective range of 914.4 metres and a maximum range of 3547.8 m. The certificate also added information about muzzle velocities.
14. In relation to the 12 gauge shotgun cartridge, Mr Berry explained that it was difficult to calculate effective and maximum ranges for shotgun cartridges because of such considerations as charge and shot type, ballistic coefficient for pellets of shot and rifled slugs, rifled slug types and weights, barrel length, choke and pattern spread.
15. Neither Mr Bush nor Mr Berry was required for cross-examination and their evidence was not challenged.
16. The applicant's Ingleside property is long and narrow, being approximately 491 m long and 79 m wide at its widest point. It is shaped roughly like a cricket bat, the handle being the driveway to the public road and the shooting position being located approximately where the maker's name would be.
17. Immediately to the north and south there are a number of buildings and other structures. It is bounded on the west by a public road, and immediately to the west of that road is Ku-ring-gai Chase National Park. Each of the five rifles tested were shown to have effective ranges greater than the maximum width of the property, even the shortest effective range, the 182.8 metres for the .357 Magnum and the .22 would encroach onto the private and public land adjoining the property. The greatest affective range of the 3914.4 metres, would cover a large number of adjoining properties. The respondent contended that this constituted a real and appreciable risk to public safety.
18. The greatest maximum range, 3547.8 m, would significantly encroach on Pittwater, Mona Vale, Ingleside and Ku-ring-gai Chase National Park. The respondent submitted that that constituted a real and appreciable risk as annexure K of Mr Bush's affidavit (exhibit R3) showed a large number of buildings and structures in those suburbs. The respondent submitted that the annexures to the Bush affidavit provided striking evidence of the major risks associated with firearm use on the property and underscored the highly inappropriate nature of the property for shooting. The respondent added that the potential for ricochet increased the risk to public safety.
19. The applicant did not dispute the technical details of the effective and maximum ranges, or the representation in the annexures to Mr Bush's affidavit of the geographical layout of the Ingleside property and its environs. His case rested on two broad propositions, first, that safety comes down to the individual and that he would never point a firearm in such a way that a projectile might travel outside his property. He referred to the admittedly effective backstop he had constructed for use when he was sighting his rifles. He had also been fully cooperative with police in their investigations of the 7 August 2021 incident. Secondly, he needed to be able to use his firearms to control vermin and ferals on his property, such as rabbits and foxes, which had become more numerous in recent times.
20. As regards the 7 August 2021 incident, event report E82761658 records that following a report from an unnamed informant of several gunshot sounds coming from the applicant's property, police notified a police helicopter that was in the area for an unrelated matter, which quickly travelled to the location and observed the applicant firing his rifle several times. The report stated that because of the backstop he was using, there was no chance of hitting anything else. On top of the raised embankment was "fairly dense bushland". Observing the police helicopter, the applicant phoned Mona Vale police, who on attending the property found that all firearms had been stored correctly and that the applicant was shooting in a controlled environment to re-align his sights. He also told police he used his firearms to manage the population of rabbits on his property.
21. The complainant stated that he only heard the shots and did not see anything of note, but added that he was "fearful" that the applicant was using firearms so close to his property. The complainant said he did not wish to make a statement.
22. The event report stated that after his licence was suspended on public interest grounds, the applicant reapplied for his licence, which was returned with a letter of authority to shoot on a property at Bellingen, and was approved on that basis. "On the basis of this", the report continued, "it does not appear on basic information that the registry has approved him to shoot on the Ingleside property". Investigating police also found that one of the complainant's allegations, that he saw the applicant shooting from his balcony at trees, was "impossible" (exhibit R1, p 12). The report also noted that on 14 February 2023 police returned his firearms to Mr Ryan after his suspension was lifted and the special condition removed.
23. It was not disputed that the applicant genuinely believed that he had been authorized to shoot on the property. He had filled in the section of his genuine reason form certifying that he was the owner or occupier of rural land and had a special need for a category B firearm to control foxes, rabbits and feral cats. That section had been crossed out, however, with the annotation "LOA", the meaning of which was not apparent.
24. The applicant testified that the section was crossed out without his knowledge and that in his interaction with the firearms registry officer, she had said only that his 5½ acre property exceeded the 5-acre minimum requirement for the use of a .22 on the property. His unchallenged evidence on that point may suggest that some kind of misunderstanding did occur. Nevertheless, the reality is that he was not authorized to shoot on his Ingleside property.
25. The applicant's argument was that safety comes down to the attitudes and conduct of the individual. Ultimately, that is true. The applicant is a company director aged 41 with an unblemished record in relation to firearms use and storage. He was fully cooperative with police investigating the 7 August 2021 incident. He is highly safety conscious and has constructed a massive backstop such that the attending police said there was no chance of his bullets hitting anything else. He has no intention of using any firearm other than a .22 on his Ingleside property, reserving his more powerful rifles for his visits to his authorized rural property at Bellingen. He is undoubtedly a fit and proper person to hold a firearms licence and it is not disputed that the property is classified as rural land.
26. Even so, some aspects of the property cause concern. As was noted above, it is long and narrow, measuring only 79 m at its widest point. He has neighbours on both sides, and judging by exhibit R3, annexure A, their houses and other buildings are almost adjacent to his firing position and appear to be only some 10 m and 20 m from the boundary respectively, well within the 182.8 m effective range of a .22. He stated on the police body worn video (BWV) footage that he had canvassed all the nearby residents and once apprised of the facts, all but the putative complainant had no objection to his using firearms on the land. There is no corroboration of that assertion, however, nor of the applicant's claim that he knows the identity of the unnamed complainant, who he describes in uncomplimentary terms, including that he is a disgruntled ex-employee. Nor is there any way of verifying his claim that there has been no instance where one of his projectiles has travelled outside the property.
27. The complainant said that the sound of gunshots so close to his own property caused him fear, and it is quite plausible that the sound of shooting at such relatively close quarters could reasonably give rise to concern on the part of neighbours, especially if high velocity (noisier) .22 rounds were in use. Given the applicant's safety-conscious attitude to firearms use, and the extensive precautions he has taken, the risk to public safety is probably minimal. Nevertheless, while public safety is the primary consideration, it is not the only one. Another is the legitimate safety concerns of neighbours hearing the sounds of shooting at relatively close quarters, especially if at some future time there were children living in the area.
28. As the respondent pointed out, Mr Ryan sometimes has other licensed persons using his rifle while he is sighting it, as in fact happened at the time of the 7 August 2021 incident. Such arrangements could increase the risk of a stray shot. The applicant's line of argument based on the safety precautions taken by the individual shooter cannot, therefore, be accorded decisive weight. Whether a different view might be taken if his sighting range were situated in a different part of the property, further away from other habitations, can on the evidence before the tribunal be only a matter of speculation.
29. The applicant's second line of argument was that he needed to be able to shoot on the property in order to control the influx of vermin and ferals such as rabbits and foxes, that had increased since the construction work on Mona Vale Road had driven them out. He said some of the foxes had grown to the size of dogs and represented a threat to his own dogs. The respondent contended that there were other ways in which vermin and ferals could be controlled, such as by poison or traps, and that as Mr Ryan was not a primary producer, he had no special need to use firearms for the purpose.
30. It is usually considered that, other things being equal, shooting is a more humane method of controlling vermin and ferals than poisoning, which can destroy native fauna, or traps, which can be inhumane. And although the applicant is not a primary producer, he lives on rural land and has a legitimate interest in controlling the depredations of unwanted pests. But again, the shape and location of the Ingleside property presents safety problems.
31. Given the shape of the property, a bullet ricocheting from a stone, for example, could well reach neighbouring residences. Mr Ryan was adamant that he never carries a rifle in battery and does not chamber a round until he has seen the target through his telescopic sight. He never attempts to shoot a moving target. If he is not sure that he can do so safely, he does not take the shot.
32. All that is no doubt true, but the risk of an accidental firing while hunting cannot be regarded as fanciful, and in such relatively close proximity to neighbouring residences could present a non-trivial risk, as understood in Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110. At the hearing I raised hypothetically whether a small calibre, less powerful shotgun (such as a 410 gauge) firing pellets might present less of a risk (assuming it were otherwise permissible and in the public interest), but the applicant was not interested in that possibility as he preferred the greater accuracy of a .22. Further, there was no evidence before the tribunal about the performance characteristics of a 410. The question was therefore nugatory and was not pursued.
33. The s 19(1) power to impose conditions is discretionary. The condition imposed goes no further than is required for the protection of the public interest, as that criterion was understood in Wallin (No. 2). In light of all the evidence, I find that it would at present not be in the public interest to lift the condition and that the correct and preferable decision is to affirm the decision under review.

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: 11 July 2023