Timms v Commissioner of Police

Evidence

1. In addition to the s 58 documents, I had before me submissions by both parties. The Applicant also provided several references: Messrs Peter Papps, G Wright and John Dall. A copy of the court file in relation to the charges brought against the Applicant was tendered. The Applicant gave evidence and was cross examined.
2. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the [Commissioner] is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) 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: s 38(2) of the CAT Act.

What led to the revocation of the Applicant's licence?

1. As a result of a safe storage inspection conducted at the Applicant's premises on 27 August 2019, the Applicant was charged with two offences under s 7(1) of the Act, namely possess unauthorised prohibited firearm, and possess unauthorised pistol. On 18 August 2020 the Applicant pleaded guilty to the charges before Sutherland Local Court and was sentenced to a 3-month conditional release order, without a conviction being recorded.
2. According to the Facts Sheet tendered in those proceedings, during a routine inspection of the Applicant's firearms storage, in addition to the Applicant's 32 registered firearms, Police located two pistols in the smaller of his two safes. The Applicant did not have a Category H licence, that is, a licence in relation to pistols. The Applicant told Police that the pistols were not his and that he had been asked to mind them by a mate who had gone to Queensland. That was (then) 8 years beforehand and the Applicant had not heard from him since.
3. The Applicant's counsel, in submissions in support of the defence to the charges, wrote that the Applicant had met a person named James Murray, who was born in England in about 1940-42 during the Police Olympics competition in 1988. He had a practice shoot with him at the Sydney Marconi Gun Club at Menai and, in order for Murray to participate, the Applicant re-called, Murray produced a Victorian shooters licence. Murray was living near Wagga Wagga at the time and was involved in "plant maintenance (perhaps mining)". The circumstances of the Applicant coming into possession of the pistols were that Murray called in to his home in about 2006/2008 and said that he was on his way to Queensland to take up a job. As he had no Queensland licence to permit him to take the pistols into Queensland, he left the pistols with the Applicant and they remained in a drawer in his gun safe. The Applicant said he never inspected the pistols nor touched them; he offered to submit to a DNA test. He also offered to attempt to identify Murray from photographs from the Victorian Firearms Registry or roads files. He was also said to be willing to have monitored phone contact with Murray.
4. The Applicant explained in his evidence that he had met "Jimmy" Murray at the Police Olympics competition in 1988, when he, the Applicant, was a Police participant and Murray was in the civilian competition. They might not see each other for 5 years, then, without warning, Murray would turn up at the Applicant's home, they would have a few drinks, and Murray would stay the night. They would occasionally see each other at clay shooting events. Although they had been friends for 20 years, they did not exchange telephone numbers because, the Applicant said, Murray moved around a lot with his work as a mining engineer. Despite this infrequent contact, the Applicant described Murray as a "close friend". Sometime between 2006 and 2008 Murray turned up at the Applicant's home and asked him to mind his pistols "for a week or two". They were put in a drawer in the Applicant's second safe. The Applicant has never heard from Murray again.
5. It was unclear if, in relation to a previous inspection in 2010 noted in the papers, whether both the Applicant's safes were inspected at that time. The Applicant said that the safe was inspected but the drawer was not opened by Police. The Applicant said that he would store parts of his semi-automatic rifles in that safe - the barrel of one, and the trigger mechanism of another. He said he would go to that safe infrequently - only once every 2-3 years - as he preferred using his other firearms for clay shooting. As to the towel Police located on top of the drawer, the Applicant said that was to prevent oil dripping from the semi-automatic parts, and not to disguise the drawer. His other safe does not have a towel, because the position the timber stocks are stored in does not make the safe oily.
6. The Applicant said he did not touch the weapons and said that he was told that his DNA was not on the pistols. It was clarified that he had been told there was no "usable" DNA on the pistols. Forensically, therefore, there is no evidence either way as to whether he had touched them.
7. The Applicant did not surrender the pistols during gun amnesties since that time because, he said, he had forgotten about them. In any event, he had never looked at them because he has "no interest" in pistols.
8. The Applicant gave evidence that he was given a week's notice that the firearms inspection was to occur. He had left the safe's door open at that inspection in order to put his semi-automatic parts back. He had simply forgotten that the pistols were in his second safe.

Contravention of the Act

1. I accept that the Magistrate, in dismissing the charges without conviction and in sentencing the Applicant to only a 3 month good behaviour bond, clearly regarded the Applicant's offending at the lowest end of the scale. The Tribunal, in determining the review, however, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].
2. The Respondent referred to Bevan v Commissioner of Police [2004] NSWADT 1, where, as in this case, a contravention had been proven without a conviction having been recorded. The Tribunal stated as follows at [26]: … Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety (see s3(1)(a) of the Act). (Tribunal's emphasis)
3. The Applicant's counsel was critical of the Respondent's reliance on Bevan, noting that there were significant differences in the facts of that case to the present matter. The facts though, do not detract from the general principle for which the case stands. The Applicant's contravention in the present matter was not merely a "technical breach" - the Applicant was storing two unauthorised firearms, for approximately eight years. Further, one of the pistols was a prohibited pistol, according to the ballistics expert whose report was in the s 58 documents. While the Applicant may have had "no interest" in pistols, he should have made himself aware of what he was being asked to store. Had he done so, he would have observed that one was prohibited and that both had had their serial numbers obliterated. Section 66 of the Act makes it an offence to possess a defaced firearm, and specifies a maximum penalty of imprisonment for 14 years.
4. As a former police officer, the Applicant should have been particularly aware of the need for compliance with the legislation; cf Kraus v Commissioner of Police [2020] NSWCATAD 152 at [118]. I accept that the Applicant is no longer a serving police officer, but, on the other hand he was a very long term licence holder. Even on the Applicant's version of events, he was aware he was storing the pistols in contravention of the Act, for a period of about 2 weeks - his possession of the pistols was not inadvertent. It was incumbent on him to comply with the legislation. It is unacceptable for him to claim that he simply forgot about them. I do not accept, as was submitted on his behalf, that it was a mere "error of judgment".
5. Further, the Respondent submitted, the Applicant's conduct posed a serious risk to public safety, given that the ballistics examination contained in the papers noted that both weapons were capable of discharging rounds. There was no evidence of the pistols having been matched to any past crime, but it is unknown if this comparison had in fact been undertaken in the course of the ballistics examination. The obliteration of the serial numbers tends to suggest that the firearms were intended to be used in an un-authorised way. Again, this information should have caused the Applicant concern had he checked the pistols he was asked to store.
6. The Applicant's clear evidence was that he had forgotten about the pistols which he had held for over 8 years. If that be correct, it is reasonable to infer that he would have continued to store the pistols for an indefinite period, had they not been located and confiscated by Police.

The public interest

1. The expression "public interest" is not defined in s 11(7) or 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. 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].
2. The Applicant is 73 years old. There was no contention that he is not a fit and proper person to hold a licence. He served in the NSW Police Force for about 30 years until his retirement in 1997. His interest in in rifles, and has an expensive collection - about 32 firearms. The Applicant gave evidence that he had been a collector since 1961 and he has held a licence since a young age. He is a sports trap shooter and has been a member of the Australian Clay Target Association since 1979.
3. Private interests, however, are not the only matters to be taken into account; 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.
4. The Applicant's counsel was critical of Constantin because that matter, unlike here, also involved consideration of the 'fit and proper person' test. Also, the Applicant in that matter, unlike here, had a serious criminal history. Again, the facts in that matter do not detract from the general principles which the Appeal Panel espoused.
5. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. It was contended on the Applicant's behalf that because Ward was also a case on the "fit and proper person" test, the case had "no application" in the present matter. I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
6. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
7. 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". Based on the available evidence I consider that the Applicant knew he was not authorised to store the firearms, but chose to so anyway, at least for a couple of weeks. That conduct alone demonstrates a disregard for the requirements of the Act. Despite amnesties during the 8 years he held the pistols, he took no steps to hand them to Police, claiming he had forgotten about them. Carelessness has consequences.

Character References

1. Each referee referred to knowing the Applicant for many years, the shortest being approximately ten years. Each refers to the Applicant's involvement with firearms associations and clubs. Mr Papps and Mr Dall note the Applicant's knowledge, safe handling and care of firearms; Mr Wright regards the Applicant has honest and trustworthy. The Respondent contended that, despite the claims made in the references, the Applicant pleaded guilty to the charges. It does not follow in my view, as the Respondent submitted, that in some way the Applicant should have been confident to plead not guilty to the charges based on the references and that the Applicant's admission is an acknowledgement that he does not understand the requirements of the Act; many factors contribute to a person's decision to enter a guilty plea.

Conclusion

1. The Applicant, in his evidence acknowledged that he had been negligent in failing to bring the pistols to the attention of Police in the intervening years since they were left with him. It is clear however, that even at the time the Applicant accepted the pistols he knew that he did not have a Category H licence. Even if I accept the whole of the Applicant's account that he simply forgot the pistols were in his safe, and that he only expected that he would hold them for his friend for a week or two, he knew he was not authorised to do so. I have accepted that the Applicant had a long and distinguished career as a Police officer, but as such, one would expect his compliance with regulatory regimes, especially in relation to firearms.
2. While I accept the Applicant has a long-standing interest in firearms, this cannot outweigh the public safety issue in relation to his possession of the pistols. In the Second Reading Speech introducing the Firearms Bill, the then Police Minister explained: "This legislation puts the public's right to safety before the privilege of gun ownership." (NSW, Legislative Assembly, Debates, 19 June 1996, p 3204.)
3. Consequently, for the reasons given above, the decision to revoke 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: 05 February 2021