Taunton v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2023-12-11

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to revoke the applicant's Category AB Firearms licence on 20 November 2022 and the upholding of that decision by way of Internal Review determined on 17 March 2023.

Introduction

The applicant in these proceedings is Mr Stuart Taunton (Mr Taunton). The respondent is the Commissioner of Police, NSW Police Force (the Commissioner). The Commissioner's delegate in dealing with the existing licence formed the view that it was not in the public interest for Mr Taunton to continue to hold a Category AB Firearms Licence.

Jurisdiction

The Commissioner had revoked Mr Taunton's Firearms Licence application on the basis of cl 20 of the Firearms Regulation, which is set out at [12] above.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d).. (e)… (f)… (g)… (Emphasis added)
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Firearms Act as noted at [19] above.
As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

The parties agree that Mr Taunton filed his application for Administrative Review on 14 April 2023 being the 28th day after receipt of notice of the Internal Review Decision. The application to the Tribunal was clearly within the 28 day period provided to lodge an application for Administrative Review. Therefore the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act.

Applicant's written evidence

Exhibit 'A-1'. Undated signed statement of S Taunton filed 20 June 2023.
Exhibit 'A-2': Statement of S Taunton dated 5 October 2023.
Exhibit 'A-3' 3 x letters of authority/permission to shoot on private property forms.
Exhibit 'A-4' Reference of P McGill 3 May 2023.
Exhibit 'A-5' Statutory Declaration of P Longhurst declared 7 June 2023.
Exhibit 'A-6' Statutory Declaration of P Colley declared 13 June 2023.
Exhibit 'A-7' List of applicant's medications.

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act (123 pages) filed 11 May 2023.
Exhibit 'R-2' Further material relevant to s 58 (including USB Key of Police Body Worn Video) filed 4 July 2023.
Exhibit 'R-3' Supplementary s 58 material filed 5 December 2023.
The Commissioner also filed late evidence after the hearing. This consisted of a statement of Senior Constable Veazey dated 22 January 2024 with a mobile phone call record attached. I address this evidence below. (Exhibit 'R-4').

Mr Taunton was represented by Solicitors and Counsel. The Commissioner was legally represented. Both sides also made oral submissions at hearing at the conclusion of the evidence and filed written submissions.
Mr Taunton was subject to cross-examination at hearing. Senior Constable Veazey also gave evidence at the hearing.
Mr Taunton's case was essentially that he had no record of violence or anti-social behaviour, and is deemed an appropriate person to hold an explosives licence. In respect of the main matters that the Commissioner holds against him Mr Taunton submitted that there had been a period of time between those matters occurring and the revocation decision.
The Commissioner's case was that essentially Mr Taunton had a general disregard for the law and compliance and issuing a licence to him would be contrary to the public interest having regard to his driving, drug and safe storage breaches equating to not being a fit and proper person to hold the licence.

Mr Taunton's evidence at hearing

In evidence in chief Mr Taunton adopted Exhibits 'A-1' and 'A-2' as true and correct. He said that his genuine reason for a licence concerned recreational hunting and target shooting. He confirmed that he had cannabis in his system in April 2023, as he had smoked a joint the night before for 'pain relief'. When asked if he had a prescription for medical cannabis he said that he did. Exhibit 'A-7' the Tom Lane Pharmacy printout was tendered.
In cross-examination Mr Taunton agreed that in respect of the cannabis there was actually no prescription. The Tom Lane Pharmacy was in Victoria and his doctor recommended patches. He did consume cannabis for pain relief. He also admitted the previous cocaine driving charge but said that he did not take the cocaine and that he found out that someone had put it in his drink. Mr Taunton denied the Commissioner's suggestion that he made that explanation up.
Mr Taunton was questioned about firearms licensee obligations and outlined broadly the safe storage obligations. He said that he was not a member of a shooting club and was only required to attend club meets if he was a member. He advised that his life was too busy to take up shooting on private property at present but that he had authorisation when he was able to get to it. He said that he had two periods of Sporting Shooters Association Australia (SSAA) membership in 1997 and 1998 and 2003 to 2004. He said that he did not shoot at SSAA events and just went there for practice.
The Commissioner noted that in his most recent application Mr Taunton cited target shooting, recreational hunting and vermin control as his genuine reasons for needing a firearms licence. Mr Taunton said he is no longer a Club member because he has permission to target shoot on private property. He said that he did not initially provide any letters of permission to the Firearms Registry as they had not asked for them.
When questioned about serious aspects of his traffic history Mr Taunton admitted that driving with cannabis in his system is an offence and that he did not make any inquiries as to how long it might stay in his system prior to driving. He said that he did not and does not raise such matters with his GP concerning the pain relief use.
Concerning this most recent infringement Mr Taunton said that he was stopped by Constable Veazey and placed under arrest due to the initial cannabis result. He said that when searching his vehicle the knife issue arose. He said that there were two versions of events. Mr Taunton said that his knife was still in his pocket from when he was working or messing about 'in the shed'. However he told the Local Court that he picked it up with his wallet and keys prior to getting in the vehicle.
Mr Taunton agreed that he had had a number of PCA matters confirming there had been three incidents. He said that he was very ashamed of those matters and does not wish to repeat them in any way. He noted that two of them were in the period 2005-2010. In respect of those matters Mr Taunton said that he did not recall telling Police that he drank whilst he was driving. He confirmed that he appealed the licence disqualification to the District Court sitting at Port Macquarie. He said that the disqualification period was reduced on appeal from three years to 12 months.
Mr Taunton was also questioned about a single vehicle accident that he was involved in some manner with. Mr Taunton maintained that he was not the driver and the driver was a man who he had worked with called 'Macca'. He said that he did not know his full name or where he lived. He agreed that at the time of this accident he was disqualified from driving but denied in evidence that he was the driver. Mr Taunton told the hearing that when he finally caught up with 'Macca' he obtained his full name and provided it to Police.
In respect of the October 2015 PCA matter Mr Taunton stated that he knew at the time that he would be over the limit. In respect of the third PCA matter Mr Taunton noted that he was aware at the time that he might be facing the prospect of prison. He had driven 13 kilometres to inspect a 4WD vehicle when he was stopped for the drug test. He said that he did not know at that time that someone had put something in his drink.
Mr Taunton was asked whether he was aware of the requirement to notify the Firearms Registry of any change of address/safe storage location. He said that he was aware of that issue in 2013 and again in 2022. He said that he was aware of the importance of Police knowing where firearms are or are likely to be but admitted that he did not comply on those other occasions and notify the Registry. It was put to Mr Taunton that he had been at his new address for six months. He admitted in evidence having been at the new address for two to three months. When pressed further he admitted that he had taken a lease five to six months earlier and also that he had not been truthful with Police.
Mr Taunton was asked about some evidence in 'R-2' whereby Senior Constable Veazey refers to an arrangement to attend the safe storage address with him on 1 December 2022, because Mr Taunton would be away in Canberra until that time. Mr Taunton denied any such arrangement or knowledge of same. He agreed that he had a telephone conversation with Senior Constable Veazey regarding seizing the firearms. However he said that when he was called and asked to return to the address by message, Mr Taunton advised that he returned the officer's calls around 6:00pm on 2 December 2022 where he indicated arrangements would need to be made. Mr Taunton emphasised that Police were calling him and seeking him, not the other way around. He said that he told them that the firearms were safely located in a locked shipping container at South Maroota. He said for seven days nothing happened between 2/12/2022 around 6:00pm and when Senior Constable Veazey calls him at 5:52pm, 6:13pm and 7:10pm on 9 December 2022. It was put to Mr Taunton that he did not tell Police where and with whom the firearms were stored. Mr Taunton denied this and said that he told them where they were. Even though he was suffering from a bad back he said he was able to move the 150 kilogram firearms safe himself with a removalists trolley.
Mr Taunton said that there were two firearms in the safe and ammunition in a separate storage area inside of the safe. The safe was inside the shipping container on a Mr Longhurst's property (Exhibit 'A-5') and Mr Taunton said that Mr Longhurst was licenced to use firearms. He admitted in evidence that he could have taken the firearms to Police as until the revocation notice was issued he was licenced to use firearms. However his legal advice was to the contrary.
Mr Taunton advised that the shot gun pellets located in his safe were left over ammunition from his shooting companions who have shotguns. He stated that he was authorised to use any category A or B firearm which included shotguns.
Mr Taunton accepted that his firearms were to be seized and that his former solicitor had advised him of this. He admitted that he was not pleased about it but accepted what was happening. He had a five minute telephone conversation with Senior Constable Veazey and denied that he hung up on him after five minutes.
Mr Taunton was taken to his most recent licence application from September 2021 at page 90 of 'R-1'. He agreed that the entry under Genuine Reason 'Target Shooting'/'member of an approved Target Shooting Club' was incorrect. He noted that that option of 'sport target shooting' had been elected on his 2011 and 2014 applications. Mr Taunton said that 'the option concerning a member approved target shooting club' is the only option available on the forms for target shooting. Mr Taunton denied that he was misleading the Firearms Registry about his reasons for seeking a firearms licence., and doing target shooting on private approved land.
In respect of his interactions with Senior Constable Veazey Mr Taunton was taken to the last line of 'A-1' where he said on 2 December 2022 that the officer did threaten to arrest him if he did not return home so that they could carry out the inspection. There was some confusion in his evidence as to whether this was actually said or whether he retracted that evidence. Mr Taunton did say that he tried to call him on 3 December 2022 (the next day). Whether Mr Taunton tried to call twice or not the Tribunal notes the references to leaving messages.
Mr Taunton did concede during cross examination that the failure to update the storage address was not an oversight but deliberate and related to the uncertainty surrounding his personal circumstances. The Commissioner also queried with Mr Taunton whether he had ever lodged the permission to Shoot on Land (Exhibit 'A-3') documents with the Firearms Registry.
In re-examination Mr Taunton was asked about the 2009 car accident involving 'Macca'. He said that the reason that he was not driving the car at that time was because he was disqualified at the time.
In respect of the delay in notifying Police of the move or change of storage location Mr Taunton said that he was not trying to evade Police. He said that the delay was occasioned by the floods.
Mr Taunton said that prior to 9 December 2022 his firearms safe was positioned in the right hand corner of the shipping container. He said that he had moved it because he knew that Police were wanting to come and inspect it so he made it accessible within the shipping container. He said that he knew that they would want to seize the firearms.
The Tribunal asked a number of questions consistent with its powers under s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) including whether the issue about 'Macca' (the car driver) had been brought up previously in dealings around firearms compliance, when he collected the knife seized in the traffic stop, knowledge of the drink spiking and related matters. Most of the evidence around these matters was somewhat equivocal, other than the Macca matter where he believed that the information caused police to not pursue any issues further with him about the accident.

Evidence of Senior Constable Veazey.

The witness adopted his 28 December 2022 statement and 30 June 2023 statements in evidence in chief. The Tribunal then embarked on a lengthy viewing of the body worn video footage whereby Police interactions with Mr Taunton (including attempts to meet him at his home), were portrayed. The witness was asked various questions to describe and clarify the footage as it was played.
At one point on the 2 December 2022 footage the occupant of the premises advises Police that Mr Taunton had been living there for about six months. The witness recalled a missed call but could not recall when he received the missed calls from Mr Taunton. In further video evidence the arrangements that occurred on 9 December 2022 are set out and the actions recorded. The licence is revoked with the papers served on Mr Taunton at his address. The witness, another officer and Mr Taunton then travel in the Police vehicle to South Maroota to seize the firearms. The container is opened, in respect of the safe there are a few locks to undo, conversation refers to the safe not being attached to anything, where Mr Taunton refers to it having been behind a lot of the container contents until he moved it. He says 'I had to shift all of this to make it accessible'. The video then depicts the checking off of the serial numbers and the locating and seizing of all of the firearms.
The oral evidence continues with the witness saying that he observed a missed call on the work mobile. The witness said that mobile remains in the Police Station.
In cross examination it was suggested to the witness that Cairns was the location of Mr Taunton's being away, not Canberra (see [38] above). The witness could not recall but said that he was not pressing Mr Taunton for his address at that time in any event if he was away.
In respect of why he had not called Mr Taunton back the witness said that he had been off work after 2 December 2022 until 9 December 2022. The witness agreed with the proposition that Mr Taunton never acted aggressively in his dealings with or observations of him. The witness also agreed with the proposition that there was no specific weight examination of the Firearms Safe used by Mr Taunton.
In re-examination the witness answered in respect of any observations about Mr Taunton's firearms safe that when he was touching it he noticed that it was moving or rocking, in that it was not affixed to the container. He said that it was rocking backwards and forwards from the weight of its door being opened.
In answer to a Tribunal question about the 'single missed call' that he referred to in his evidence in chief, the witness agreed that there was evidence that Mr Taunton was trying to contact him by telephone, in order to comply with the direction concerning revocation and seizure.

Supplementary Evidence tendered by Respondent

As noted above the Commissioner sought to tender further evidence after the evidence had closed. The Tribunal has a discretion to receive late evidence but when doing so it must ensure procedural fairness to all parties and witnesses whom the evidence might impact on.
On 5 February 2024 the Commissioner sought to file a further statement of Senior Constable Veazey dated 22 January 2024. This statement sought to put into evidence a call log from the officer's work mobile. Both parties were invited to provide submissions as to how the Tribunal should deal with the proposed tender and whether the evidence needed to be reopened so that the witness could be cross-examined on that evidence. Both sides responded. As the evidence sought to clarify earlier oral evidence of the witness, and that clarification could be viewed as favourable to the evidence of both sides, the Tribunal notes that there was no opposition by the applicant to the tender.
The evidence relates to the oral evidence of receiving a missed call from Mr Taunton in the period following 2 December 2022. (see [51] and [55] above). In his evidence the witness refers to the Tribunal hearing of 11 December 2023 and his evidence under cross-examination concerning a number of missed calls. The following is said in the statement at [5]: 5. … During the proceedings I underwent questioning regarding phone communications between Stuart TAUNTON and myself. While providing my testimony particular emphasis was placed on the number of missed calls I purportedly received from Stuart Taunton on the 2nd December 2022. I informed the defence that I had received a single missed call. 6. on the 12th December 2023 I returned to work and checked the call log on my work mobile one. On doing this I confirmed the following calls had been made and / or received with Stuart TAUNTON. a. 28 November 2022 3:46pm call to - one minute and 30 seconds b. 2 December 2022 6:09am call to - 4 minutes and 55 seconds c. 2 December 2022 5:48pm missed call from - nil message left d. 9 December 2022 5:52pm call to - nil answer e. 9 December 2022 6:23pm call to - nil answer f. 9 December 2022 7:10pm call to - nil answer g. 9 December 2022 7:28pm call to - nil answer.
Screenshots of the call logs were tendered annexed to the statement. In my view the statement speaks for itself and the lack of any need to question the witness further in it is evident. I receive the tender of the late evidence on the basis that it would be in the interests of justice to do so - Exhibit 'R-4'.

Applicant's submissions

In brief oral submissions at the conclusion of the evidence, Counsel for Mr Taunton submitted that the Tribunal should take note of his candour during the lengthy interaction with Police as shown in the video played during the hearing. Counsel submitted that Mr Taunton tells the truth even when it is not favourable to him.
In initial written submissions filed prior to hearing Mr Taunton submits that he is a fit and proper person to hold the licence. His six matters on his record are set out, and whilst the PCA matters are serious, Counsel submitted that all offences occurred in the context of traffic matters. However it was accepted that this traffic history is relevant to whether the licence should be reinstated or not.
It had been over eight years since the last PCA offence and the other two offences occurred 16 to 17 years ago. The above record and nine speeding offences were measured against a 35 year driving history and noted that he had complied with prior periods of driver licence disqualification. It was submitted that the majority of offences occurred more than 15 years prior to the hearing.
Reference as made to O'Brien v Commissioner of Police [2022] NSWCATAD 259 (O'Brien) whereby the Tribunal found it was not in the public interest for that applicant to hold a firearms licence predominantly because of his poor traffic history. Mr Taunton submitted that his record was not as serious as the record in O'Brien and that in O'Brien the majority of matters had occurred in the decade prior to the hearing.
In respect of the knife matter Mr Taunton noted that the matter was dealt with by the Court without proceeding to a conviction, and that nothing in the circumstances of the conduct relating to the charge supported a finding adverse to the ability to exercise safe and continuous control over firearms.
Submissions were made concerning no history of violence, stable long term employment and that he has been entrusted to work safely and effectively with dangerous materials (explosives licence). Failures to notify the Firearms Registry of a change of address were conceded but without any history of firearms misuse it was submitted that such failings do not warrant a conclusion that Mr Taunton would not comply with his firearms obligations.
It was also submitted that there has been a long period of decades of incident free firearms use. It was also refuted that Mr Taunton possessed a strong disregard of Police and the law and regulations. Reference was made to Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 and Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 noting that there was no real and appreciable risk to the public and that any risk is no more than minimal and theoretical.
In supplementary written submissions filed after the hearing Mr Taunton submitted that whilst he denied ever making up his answers, the Commissioner had failed to adduce any evidence which contradicted or refuted the evidence of Mr Taunton.
It was conceded that the Tribunal could decline to make a positive finding that Mr Taunton's evidence was accurate on these contested matters, but it was also submitted that there was a limit to which a positive inference of dishonesty could be drawn. It was submitted that much of the applicant's evidence was open to being verified by the Commissioner should they have sought to prove a lack of credit.
It was submitted that Mr Taunton was credible with his evidence and that he was frank and made concessions where relevant in the giving of his evidence. He conceded where he had been non-compliant and accepted that he had not notified the Registry of the change of address and accepted that this was more than an oversight.
It was submitted that those matters arose in somewhat extraordinary circumstances with the impact of the floods and the need to move property (including his firearms) to keep them safe. The tenure of any move was submitted as uncertain and that such evidence in the circumstances was credible.
It was also submitted that Senior Constable Veazey acknowledged that prior to 2 December 2022 when he spoke to Mr Taunton he had not indicated in any manner that he would be revoking his firearms licence, and that he had actively sought to conceal that purpose. On that basis it was submitted that there is no ground for a submission that Mr Taunton was evading and actively avoiding Police prior to 2 December 2022.
On the comments of the officer about the safe holding the firearms, Mr Taunton submitted that no breaches were ever formalised. In addition there was no actual evidence that the safe weighed less than 150 kilograms noting that it was not affixed to the floor on 9 December 2022.
In closing it was submitted that the witness did not identify Mr Taunton as being any risk to public safety, and the transcript of the Local Court accepted that there was a legitimate reason for Mr Taunton to be in possession of the knife for practical reasons. On this basis it was submitted that there is nothing sinister to infer in respect of Mr Taunton's conduct.

Respondent's submissions

In written submissions filed prior to hearing the Commissioner submitted that Mr Taunton failed on the genuine reason criteria to have a valid reason for holding and maintaining a firearms licence. Reliance was placed on the lack of any current and continuing Club membership to satisfy the 'sport/target shooting' reason. Additionally a lack of receipt of any permission to hunt / shoot on private land was cited as a basis for not meeting that genuine reason criteria.
Submissions were made concerning fitness and propriety and the structure of the regime leading to a focus on public safety. The Tribunal agrees with those submissions. The Commissioner took the Tribunal to the traffic history of Mr Taunton and submitted that a traffic history is directly related to the public interest under firearms legislation citing cases such as Himo v Commissioner of Police [2021] NSWCATAD 321 and Tannous v Commissioner of Police [2011] NSWADT 116 where the former Tribunal observed at [38] that it: 38. ..is not in the public interest for a person to be licenced to possess a firearm, where the person does not have proper regard to laws and regulatory schemes which seek to ensure public safety.
Consistent with the case of O'Brien (above at [63]) the Commissioner submitted that prior conduct can provide some guidance about how an individual will behave in the future when considering the public interest concerning firearms licencing. It was submitted that O'Brien is authority for the proposition that a lack of compliance with traffic laws increases the likelihood that an individual might adopt a similar view towards compliance with firearms regulations.
The Commissioner set out five grounds for the Tribunal to consider: (1) the applicant's criminal record, (2) safe storage infringements, (3) the applicant's traffic record, (4) a purported lack of a genuine reason for holding a licence, and (5) a purported failure to meet participation requirements of sports / target shooting.
In respect of the criminal record the Commissioner submitted six matters, (the PCA matters being serious traffic matters), and referred to the knife in a public place, a failure to disclose the identity of a driver and driving with an illicit drug present in blood (the last matter also being a serious traffic matter) as relevant. Significant submissions were made in respect of Mr Taunton's regular position of not providing comment when questioned by Police or in Police custody over the intervening years. The Commissioner submitted that the records and this behaviour demonstrated a complete disregard for the law over a sustained period. In this context they submitted that he was not fit and proper to hold a licence.
Further submissions addressed the purported failures of safe storage requirements including that the Firearms Registry be notified within 14 days and any storage locker or safe be at least 150 kilograms in weight or otherwise be securely affixed to the floor or wall so that it cannot be moved.
Submissions concerning the traffic history was characterised as a disregard for public safety including Mr Taunton's own safety.
In post hearing submissions the Commissioner narrowed the issues to four: (1) Mr Taunton's criminal and traffic record, (2) safe storage infringements, (3) lack of genuine reason, and (4) Mr Taunton's credibility and character. The Commissioner maintained a concern about the traffic matter and a failure to provide details of the identity of the driver 'Macca'. This submission is predicated on a position that Mr Taunton was either lying about who was driving or lying about not knowing 'Macca's' identity. The Commissioner submits that the conviction for that offence supports a finding that he must have failed to do something that was open to him to do.
The drink spiking evidence was discounted by the Commissioner as Mr Taunton did not challenge the Court outcome. However on the cannabis matter from 2022 he did not receive a conviction for that matter.
On the 2022 matters concerning the knife and cannabis the Commissioner maintained their submissions that Mr Taunton's version of events were not credible. However I note that these matters resulted in a dismissal/non-conviction of the knife matter and a non-conviction for the cannabis matter. The Commissioner maintained concerns about the differing reasons for carrying the knife on a public holiday and criticised the version given to the Court concerning cutting of meat at a friend's barbeque (noting that it was a public holiday).
Additional submissions concerned Mr Taunton's evidence that Police should have approached him about his firearms (which they eventually did). The Commissioner did not engage on the legal advice that Mr Taunton gave evidence about his concern that he could not take the firearms into Police himself, in that they did not refute the evidence that he did not act to surrender the firearms because he believed that to do so would have been legally impermissible They referred to Mr Taunton acting on this advice and suggesting that Police approach him rather than the other way around was a matter of significant concern.

Consideration

I note that that the licensing regime requires 'strict compliance' because misuse of firearms can result in devastating consequences as set out in Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117]: In my view, it is essential that licensees comply with the legislative requirements. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms 117. It can result in catastrophic consequences. The legislature did not intend that it be open to the Applicant or any other licensee to determine that an alternative method of disabling a firearm is to be preferred to that approved by the Commissioner. It is for the Commissioner, not the individual licensee to determine how a weapon is to be rendered inoperable.
I note that the failure of Mr Taunton to notify the Police of the new address for storage so that seizure could occur had not resulted in the loss of the firearms like in the case of Regan v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 337). He provided a number of explanations for his failures in this regard, mainly matters relating to his relocation needs both personal and property due to inundation as a result of the various 2022 floods in the Hawkesbury Nepean region where he operates. It may be that based on these explanations the Commissioner exercised her discretion not to breach Mr Taunton on any Firearms Act or Firearms Regulation matters.
In addition matters relating to the purported non-compliance of the storage safe for the firearms in the shipping container at South Maroota never resulted in breach action against Mr Taunton. I note that the evidence about the weight of the safe was somewhat equivocal. In addition the safe was said to be inaccessible until it was moved in the days prior to the inspection/seizure to allow accessibility. Prior to this it was behind a lot of unrelated items stored in the shipping container against the rear wall or corner. His evidence in Exhibit 'A-2' was that the firearms had trigger locks in place. This evidence is also supported by 'A-5'.
In my view the major issues about Mr Taunton being fit and proper to hold the licence and whether the reinstatement of the licence would be in the public interest are as follows: (a) He was somewhat unclear and inaccurate in aspects of his evidence at hearing, (b) In respect of his living arrangements he initially stated that he had taken the lease two to three months prior, but under questioning conceded that it was more like five to six months consistent with the Police understanding, (c) There was also an observed attitudinal issue around the role of the licence holder and the role of Police demonstrated by Mr Taunton during his evidence. He seemed to convey to my observation a position that there was some onus on Police to establish or prove matters, and no onus and responsibility on the licence holder.
I note that Mr Taunton referred to the Registry seeking him out by telephone about the whereabouts of his firearms. In that context his evidence was that he was in effect responding to their overtures. I got the distinct impression during that portion of his evidence that the Registry was pestering him and making unsolicited calls. In this regard it is arguable that Mr Taunton lacks some insight into his individual roles and responsibilities under the firearms licencing regime. The question being does such a lack of insight compromise public safety.
The Commissioner submitted that there were a number of discrete breaches including the failure to participate in the genuine reason requirements (for target shooting), and the failure to comply with the requirements around change of safe storage address. I note however that Mr Taunton provided explanations for the compliance failures with his evidence that he conducted target shooting on private land as part of the permission to shoot. In this regard I note the unchallenged evidence contained in the three letters of authorisation tendered without objection as Exhibit A-3.
The Commissioner whilst not pressing any issue concerning the gun safe/cabinet other than its weight and not being affixed submitted that the discrete breaches established a lack of understanding of details relating to compliance with the Legislation.
I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
I note that the underlying principle of the Firearms Act concerns public safety.
In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act identifies a purpose to deal with public safety at s 3(1)(a) of the Act.
Section 3 of the Firearms Act provides: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and
As often observed in these reviews whereby breaches and irregularities go to the character of the person and whether reinstating a licence would be in the public interest, the overall scheme and its purpose should be examined. The Appeal Panel of the Administrative Decisions Tribunal in the case of Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
Further, in the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56], the Tribunal observed: 56 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. 57 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."
The crucial issue in these proceedings concerning whether Mr Taunton should continue to hold a firearms licence relates to the public interest. In that regard significant concern is raised around Mr Taunton's actions in not dealing candidly with Police as well as his antecedents.
On the issue of his antecedents which goes to his character and the notion of being fit and proper, I note that Mr Taunton was first licenced in 1998. He had remained continuously licenced for close to 25 years with his licence being revoked in late 2022. The licence was first issued and then renewed five times without incident or issue. During this period all adverse matters concerning Mr Taunton were well known to Police other than the 2022 traffic stop which ultimately led to the revocation decision.
NSW Police were the custodians of the information which has been used against him in the decision under review other than the knife matter where the Court finalisation information arose after the commencement of these proceedings but is now before the Tribunal.
It is difficult to ascertain why his licence was reissued on five occasions with an adverse history that the Commissioner now relies upon. At no time during the hearing was there any suggestion that other than the matter about electing sport/target shooting, had Mr Taunton ever completed his application form untruthfully. The Commissioner regularly relies on applicants fully disclosing relevant matters so that they can appropriately and efficiently assess their suitability or otherwise to have a licence issued.
It is also difficult to understand why in such circumstances the matters pre September 2021 are now being used to argue the case against him. I accept that those matters raise questions about Mr Taunton's suitability to be issued a licence but again note that no such questions were ever raised at the relevant time on a total of six occasions when the Commissioner's delegates issued Mr Taunton with a firearms licence. I note that the 2022 matters which brought about the revocation decision have resulted in non-convictions for each offence (cannabis and knife).
In addition to the public interest basis for the decision for review before the Tribunal, the notion of 'fit and proper' is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) and the various Administrative Decisions Tribunal and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
As observed previously, this position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance, the regime is designed to protect the public as a primary consideration and for this reason under the Firearms Act access to and use of firearms is not a right but a privilege.
In the case of Artridge v Commissioner of Police, NSW Police Force [2021] NSWCATAD 188 (Artridge) at [21] - [27] the Tribunal observed that the public interest question is the main task facing the Tribunal in this type of review: The public interest 21. What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." 22. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system." 23. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act." 24. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk." 25. That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134]. 26. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]- [64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58]. 27. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].
As has regularly been observed, the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3(1)(a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.
In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to set aside the revocation of the licence. Whilst Mr Taunton's character is neither exemplary or of high repute, I note that the requirement is that he be of sufficient repute to comply with his responsibilities in order to ensure public safety in his use and possession of firearms. For the reasons set out here I am satisfied that he is able to comply.
He is required to be able to maintain continuous and safe control of firearms at all times. Having regard to his explanations for his failures to comply with the notification matters I accept his explanations concerning the impact of the floods. I also accept that his evidence was that he sought to move the gun safe to a more accessible position in the container for the forthcoming inspection and seizure. In my view his demeanour and that of Police in the extensive body worn video evidence that we watched throughout the hearing shows respectful and compliant behaviour.
In his 51 years at the time of the hearing there were no offences of violence (including domestic violence) and no intelligence of same or confidential evidence that the Commissioner sought to rely upon.
Likewise Mr Taunton had not been breached for firearms offences either serious or minor. Other than the knife matter there are no mattes involving weapons including firearms that were in evidence before the Tribunal. It appears that until the traffic stop on Anzac Day in April 2022, the Commissioner held no concerns about Mr Taunton's suitability to hold a firearms licence.
Whilst his traffic record is poor, especially his repeated PCA offences, I note that these matters were not agitated in respect of his suitability to hold a licence until 2022. If the decision was to be made solely on character then a licence would have been refused in 2008 and again in 2011 and 2016. However as the regime is protective and not punitive, the Tribunal's main focus concerns what aspects of Mr Taunton's behaviour impact on public safety. His traffic record does count against him in that regard. However on an overall consideration of public safety I note the matters raised at [99] to [102] and [108] to [110] above.
In respect of the complaints that he was not always candid with Police, on one view Mr Taunton was exercising his legal rights not to comment and engage on matters. In my view whilst the holder of a firearms licence should be candid when dealing with Police that requirement for candour is strongly directed at firearms and violence related matters due to the overall issue concerning public safety and the objects of the Firearms Act. Ideally all persons including licence holders should exhibit candour. However, the requirement does not in my view go so far as to exclude legal rights to silence that are otherwise available to all persons under law.
A failure to be candid in respect of inquiries relating to firearms would however be of significance. In the current matter however Mr Taunton's main failing seems to be that he has not memorised or been otherwise sufficiently familiar with Mr Longhurst's South Maroota address to be able to provide it verbally to Police over the telephone when called.
On the evidence before the Tribunal, there is limited evidence of any adverse impact on public safety. The character references which include professional references, demonstrate that Mr Taunton has a good record when it comes to ensuring public safety in respect of operating his fireworks and explosives licence.
Whilst the Commissioner sought to downplay the weight that should be given to the references at 'A-4' 'A-5' and 'A-6', no witness was required for cross-examination at hearing and in that regard I place particular weight on the statutory declaration of Mr Longhurst.
The only matter that would be questioned from the Longhurst Statutory Declaration 'A-5', would be the reference to Mr Taunton calling Police twice on 2 December 2022 without success. No evidence was adduced as to whether the Police Station was also called. In the absence of cross-examination and noting that he was not the caller, it is difficult to make any finding about why Mr Longhurst refers to calling twice in his evidence. The other sworn Longhurst evidence for what it addresses is in my view of significant weight.
Whilst the individual statements do not set out Mr Taunton's antecedents in total they are not sentencing references but focused on addressing public safety. In this regard they hold some weight.
In my view the totality of the evidence establishes that the major concerns of the Commissioner and the basis for revoking the licence have fallen away on assessment of the available evidence during the administrative review. Having made that finding I note that any matter which has the potential to impact on public safety in the context of the firearms regime, is a very serious and significant matter.
However, the appropriate approach would be that the Tribunal sets aside the decision.

Conclusion

Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent and to direct that the licence be reinstated.
I therefore make the following order:

Orders 1. The decision to revoke the Applicant's Category AB Firearms Licence is set aside. 2. The Commissioner is to reinstate Mr Taunton's Category AB Firearms licence which issued on 18 September 2021.

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: 26 August 2024

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Judgment (16 paragraphs)

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Legislation Cited (3)

Cases Cited (15)