Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Commissioner of Police, New South Wales Police v Gainey (GD) [2007] NSWADT AP 23Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Director-General, Transport NSW v AIC (GD) [2011] NSWADT AP 65
Director of Public Prosecutions v Smith [1999] 1 VR 63
Director of Public Prosecutions v Wilson [2004] NSWSC 911
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Gibson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 212
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
O'Sullivan v Farrer (1989) 168 CLR 210
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272
Smith v Commissioner of Police, New South Wales Police Force and Commissioner of Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Wilson v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 274
The applicant Mr Kenneth N Wilson applied to this tribunal 17 October 2019 for review of a decision by a delegate of the respondent dated 10 October 2019 to revoke his category AB firearms licence, affirming a revocation on 2 August 2019.
He had held a firearms licence under previous legislation from 21 March 1990 until that licence was cancelled and replaced on 27 November 1998, having been superseded on 26 November by a licence under the present legislation. His most recent category AB firearms licence was issued on 21 January 2016 for the reasons of recreational hunting/vermin control. On 15 April 2017, the further reason of vertebrate pest/contract shooter (VPAC) was added.
The applicant passed number of safe storage inspections. On 26 September 2014, police attended his address to serve a notice of refusal of firearms licence on his son, Mark Wilson, and while there spoke to the applicant about the storage of his firearms and inspected the storage facilities with his permission. On the occasion of a further safe storage inspection or 25 September 2017, they spoke with him about allegations that his son had been firing a rifle from a vehicle in the area. Police contacted neighbours who stated that they had not seen or heard anyone shooting and the matter apparently proceeded no further.
In March 2018 a firearms prohibition order (FPO) was issued against the applicant's son Mark. As Mark was at that time living with his parents, the applicant could no longer store his firearms there and a Sgt Lachlan Tancred of Taree police gave him a month to move them away. The applicant complied by sending them all for storage at a friend's safe storage on his property at Orange.
On 20 June 2018 this tribunal granted a stay of the FPO issued against the applicant's son, and that FPO was removed on 30 November 2018 (Wilson v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 274).
On 12 July 2018, a little after noon, police attended the applicant's address to conduct a safe storage inspection. As the front gate of the property was padlocked, they gained the applicant's attention by use of their siren. The applicant then walked onto the veranda of the property, waved to them to acknowledge their presence, and drove down to the front gate, which was about 300 m away, and admitted the police to the property. He told police that most of his firearms were at Orange, but he had one with him, which he said was currently in use. His safe keeping facilities were empty but complied with the legislation.
When asked about where his firearm was, he again said it was in use and showed police to the veranda, where he lifted a fabric sheet revealing a category B Tikka rifle on a bipod with no bolt in it. He maintained that he was on his property and controlling wild dogs and that he had taken the rifle out of the safe that morning. He said that when police had arrived he had walked up to the house from the shed where he had been working reloading some cartridges and had removed the bolt and magazine for safety reasons.
When questioned he was adamant that on his interpretation of the Firearms Act, the rifle was still in use, even though he had been approximately 38 m away in the shed and it was not in his line of sight or direct control. Police also noted that his wife, who was not licensed, was in the house at the time. On the basis that a safe storage contravention had taken place, police impounded his rifle. On 9 May 2019 at Forster Local Court, Hudson LCM found the applicant guilty of the offence of not keeping a firearm safely and dismissed the charge pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (CLP Act).
In the present application, the respondent's position is that the revocation should be affirmed as the applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so.
[3]
Applicable legislation
Section 24(2) of the Firearms Act provides:
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
The reasons prescribed by the regulations include cl 20, which states that the Commissioner may revoke a firearms licence if satisfied that it is not in the public interest for the licensee to continue to hold it.
The issues in the present matter are thus whether the applicant is still a fit and proper person to hold a firearms licence and whether it is in the public interest for him to continue to do so.
[4]
Respondent's evidence
The respondent called no oral evidence but relied on documentary material, including the s 58 documents (exhibit R1) and a further bundle of documents (exhibit R2). The latter included a statement dated 11 January 2020 by S/Cst Shaun Forrester of Forster police, who stated that at around 12:30 pm on 12 July 2018 he and S/Cst Robin Crick attended 873 L*****Road, Bucca Wauka, for the purposes of conducting a safe storage inspection of the firearms and gun safe belonging to the applicant. On arriving at the property, he observed that the front gate was secured with a padlock and chain and that the residence and a shed were set at some distance back from the front gate. S/Cst Crick briefly activated their siren in order to attract the occupants' attention. S/Cst saw a man he took to be the applicant walk out of the front door of the residence and move quickly around to the western side of the house. He saw the applicant's stop and bend down for several seconds before returning inside. A minute or so later he saw a white vehicle making its way down towards the front gate. The applicant stepped and unlocked the padlock, opening the gate to admit the officers. They followed him and parked near the shed. They then followed him into the shed or garage, which was a separate structure from the residence. The door of the shed was open and he observed a table with ammunition reloading equipment set out on it. The applicant showed him his gun safe, which they examined and found to meet the structural requirements. Asked about the firearm he had on the premises, he stated "It's down in, it's in use because I've got dogs coming through here…. While it's in use don't have to have it locked up".
They then walked over to the house and observed a table on the veranda with a cloth covering an object. Mr Wilson lifted the cloth, revealing a rifle sitting on a bipod attached to the front of the rifle, and a rest at the rear. There was no bolt or magazine in the rifle. He explained that he had removed the bolt on realizing that the police had arrived. He said the magazine and ammunition were inside the residence and not with the firearm. He said he had been in the shed reloading ammunition at the time police arrived and had heard the siren.
After being cautioned, the applicant again said that the weapon was in use, to which S/Cst Crick said "It's not in use. How is it in use? It doesn't have a bolt or a magazine". He replied, "Because I took the bolt out when I seen you people there, and it's in the glovebox in my car, the magazine with the ammunition I always keep it inside…. I was up in the shed actually, I think reloading ammunition, and heard the horn so I came up onto the veranda to see who it was and it was you blokes so I took the bolt out of there (pointing at the firearm) and took it down and put it in the glovebox in the car for security reasons. It's in use, I'm entitled to have a firearm in use on the property".
[5]
Applicant's evidence
The applicant did not lodge a witness statement but tendered a document (exhibit A1) of evidence and submissions, which consisted mainly of the latter. At the hearing he gave oral evidence in which he said inter alia that he lives on 25-acre property near Gloucester and has had guns since he was 14. He decided to be a professional shooter and met a man who was in the hide and skin trade from whom he learned the necessary skills. He engaged in professional shooting from Condobolin, Bathurst and Orange and did not charge farmers for his services, only receiving fuel. He sold about 1200 fox skins a year while so engaged.
He worked as a private investigator for 6 years, and subsequently at the Roads and Traffic Authority for 12 years until he retired. He established a business with his son of hunting wild dogs and had arranged agreements with about 12 farmers. The business did not get off the ground, however, because of his son's shooter's licence problems. If he regained his licence, he would advertise his services and enter into agreements with farmers and expected to supplement his income in that way. He keeps no stock on his own property, but his neighbours want him to help control wild dogs. Since he has been at his present property for about four years, he has killed a number of them.
He has passed about 7 safe storage inspections, including at Orange and Charlestown, and only had a problem with the last one, on 12 July 2018. It was unintentional. He had been hunting a couple of dogs and had set up motion detectors and bait at the far end of his paddock. He had finished reloading some rounds and was returning to the house when the police arrived, and removed the bolt from the gun when he went to meet them.
His closest neighbour is about 300 m away, almost over a hill. The other neighbours are between 800 m and a kilometre away. The gate is always padlocked, although there is no alarm on it. The police had not made an appointment to carry out a safe storage inspection as required under s 19(c) of the Act, but he did not object as he had thought he was not doing anything wrong. As he wrote in his submission to the internal review, "I have learnt from this experience and I accept responsibility of the very minor breach of the Act, and will never breach the Act again ensuring that everybody without a firearm licence cannot possibly possess the firearm" (exhibit R1, pp 65-66).
[6]
Respondent's submissions
The respondent relied on some written submissions filed on 14 January 2020 setting out the factual background to the case, the applicant's license history and his record of criminal offences, contending that "what is material is the applicant's having been found guilty of an offence under s 39 of the Act, the applicant's prior criminal history being historical in nature and having been considered in its appropriate historical context at the time of the applicant was first granted a firearms licence".
After stating the applicable law, the submissions contended that the correct and preferable decision was to affirm the revocation decision, having regard to the applicant's having been found guilty of an offence under the Act in relation to the safe keeping of firearms and having regard to the applicant's response to the concerns of the police in relation to the applicant's safe keeping of the firearm concerned and the possible risks to the public.
Significant weight should be given to any offences under the Act, however minor, the respondent contended. Significant weight is appropriate having regard to the legislative purpose of the Act and the paramountcy of public safety (s 3). When a court finds a person guilty of an offence under the Act but disposes of the charge under s 10 of the Crimes (Sentencing Procedure) Act (CSP Act), the finding that person has committed an offence under the Act is a significant matter directly relevant to the question of whether the person to be granted a licence. The disposition of the charge is significant only in relation to the question of whether a conviction should be recorded and what penalty should be imposed.
That decision has significance for the purposes of the Act only in so far as the person is not "convicted" and thereby not statutorily disqualified for 10 years from holding a firearms licence under s 11(5)(b). Section 39(1)(a) should be interpreted as meaning that "if there is any reasonable precaution to ensure the safe keeping of a firearm which the person possessing a firearm fails to take, then that person has contravened s 39(1)(a)": Director of Public Prosecutions v Wilson [2004] NSWSC 911, [13] - [14].
In finding the offence proven, the Local Court must be taken to have accepted the proposition that the applicant had failed to take a reasonable precaution to ensure the safe keeping of his firearm. Those circumstances included the location of the offence on the veranda of the property, the location of the unattended rifle with the bolt inserted but not the magazine, the fact that the firearm was neither in the sight nor the presence of the applicant and therefore not in his direct and immediate control, the proximity of an unlicensed person (viz., his wife) at the relevant time and the relative risk that an unlicensed person might have access to it, including persons who might wish to steal it.
[7]
Consideration
This tribunal has jurisdiction to entertain this application by reason of s 75(1)(c) of the Firearms Act, which creates a power to review a decision by the Commissioner revoking a licence or permit.
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.
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)(c) states that a licence must not be issued unless the Commissioner is satisfied that the Act's storage and safety requirements are capable of being met by the applicant. Section 11(4)(a) 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 way of living or domestic circumstances.
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 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].
The tribunal is to take into account matters indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60].
[8]
Fit and proper person
One of the grounds on which the application is opposed is that the applicant is not a fit and proper person to hold a licence. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But there purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion [my emphasis].
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
[9]
The public interest
Under s 24(2)(d), a licence may be revoked "for any other reason prescribed by the regulations". Clause 20 provides that the Commissioner may revoke a licence if satisfied that it is no longer in the public interest for the licensee to continue to hold the licence.
The phrase "public interest" is not defined in the Firearms Act. In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include 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) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
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.
The issue of public interest allows for matters going beyond the 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, [33].
On the issue of public interest, the respondent relies primarily on the safe storage contravention, stressing that the applicant had left the firearm unattended and unsecured with the bolt in the breech in an unsecured location. As at the time he was in the shed some 38 to 50 m distant, he was neither within sight nor reach of it and therefore unable to exert control over it. Persons who might have access to the rifle, apart from Mrs Wilson, could include persons who might wish to steal an unattended firearm from a rural property, despite the remoteness of rural properties from areas of dense population. Further, an offence under s 39(1)(a) can attract a maximum penalty of 12 months' imprisonment (or 20 penalty units or both). The respondent also relies on the breach of cl 17, pointing out that control over the transportation and movement of firearms forms a significant part of the regulatory system.
[10]
Orders
1. Decision under review set aside.
2. A category AB firearms licence should be issued to the applicant.
[11]
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: 31 January 2020
Parties
Applicant/Plaintiff:
Wilson
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He maintained it did not have to be safely stored as he was on the property, he was controlling the dogs on the property. "I don't have to be using it directly straightaway. It's in use while it's out here". He denied that anyone could come onto the property and steal it, "Because they won't, how can they, nobody comes here without me knowing, what do you think the big padlock's on the front gate for?"
The officers did not agree and took the rifle and his licence, the applicant still maintaining that it was in use. S/Cst Crick made a statement dated 3 January 2020 to a similar effect (part exhibit R2), also explaining that throughout the interaction his body worn camera was operating. He transcribed the conversations verbatim in his statement and attached two DVDs recording the incident. The officers were not required for cross-examination.
Also part of exhibit R2 was an affidavit dated 16 January 2020 by Sandie Grugan of the Firearms Registry, who deposed that the registry was not in possession of any notification from the applicant indicating a change of address for the safe storage of his registered firearms when they were relocated to another location (believed to be in Orange or Bathurst) during the period in which the applicant's son's firearms prohibition order was in force.
His son's FPO issued in about March 2018 at a time when he was living with them. He is a single parent. When it was served by Sgt Tancred of Taree police, the applicant had asked him, "Do I have to move the guns straight away?" Sgt. Tancred gave him a month to do it. The applicant's safe storage problem came much later.
In cross-examination he said that his assurances in his internal review submission about his future conduct were true at the time and remained true now. The front gate was usually padlocked, but he might leave it unlocked if he went to town, which took about 40 minutes there and back. Sometimes he gets lazy about it but always locks his guns away. He stood by his letter to the firearms registry dated 2 March 2018, including his statement that his son Mark had changed greatly and had been looking into a course to become a youth worker to help troubled youth. He takes ownership of his past and deeply regrets that he took the wrong path and got in with the wrong people.
They had moved to the property on 1 July 2012 but had owned a house at Orange for 15 years. The current property is now on the market. They have made a number of improvements to it and hope to earn a profit on the sale. They plan to live more out in the country so that he can work as a shooter, if he recovers his licence. They would propose to buy a house in town in Orange. He would use his licence for vermin control and commercial hunting, with formalized agreements with farmers that would enable him to invoice them. He would also make use of his background as a hide and skin dealer. He has a good reputation with farmers.
The house is on an unsealed road about 20 minutes from town. It is not a main road - the front gate is nearly 20 minutes off the main road and the gate is 300 m from the house. The shed is about 18 m from the house, holding a double garage with no doors and a section with two double doors in which he stores his tools and firearms safes, as well as his reloading gear. They are in a known wild dog area and he helps his neighbours to control them.
When the police arrived on 12 July 2018, he waved to them to show that he had seen them and removed the bolt from the rifle. At that time it was pointing to the west, at the bait, and was on a rest. He moved it back to the wall, which made it point towards the front of the property. He placed the bolt in the car and drove to see the police. He had previously gone to the shed to complete loading some cartridges because if an insect crawls into a case before a projectile is placed in position, they can cause an explosion through an excessive buildup of pressure. When the police had arrived, he had finished reloading and was in the shed. The rifle was not within reach or in his line of sight, but nobody could enter the property without his knowing. He can see whole property, but there is no gate alarm.
He believed that the firearm was effectively within reach but agreed that he was in the wrong. He was found guilty because his wife was in the house and she is unlicensed. If he had known he was doing wrong, he would have placed the rifle in a safe, but he left it there because he thought that as it was the police, it must be all right. If he recovers his licence, he will keep another safe in the house. Asked whether he was aware of the phenomenon of rural firearms theft, he said he was, but had not been aware of the extent of the problem until the respondent had told him. Nothing is 100 percent safe, however, as thieves could come into the house with guns and force the owner to open the safe.
His son's FPO had been stayed on 20 June 2018, and at that time he had 6 firearms. He moved them to safe storage at a property at Bathurst because of the FPO but had not notified the registry because he expected they would be returning to his place.
The applicant also tendered a sound recording of Hudson LCM's judgment in the applicant's Local Court safe storage case (exhibit A2).
The submissions also criticized the applicant's challenging the police when it was suggested that having a firearm out and unattended raised serious questions about the care he had taken with his firearms on other occasions before 12 July 2018. The applicant's conduct also raised questions about his attitude to the privilege and responsibility of firearms ownership and safe keeping more broadly, that were matters directly relevant to his fitness and propriety to hold a firearms licence and to the public interest.
The applicant failed to disclose any awareness of the potential risks created by his approach to, or interpretation of, what constituted safe keeping, irrespective of his personal view as to the likelihood of the risk eventuating. His submission did little more than accept responsibility for the breach in circumstances where plainly no other person could have been responsible. That the applicant suggested that he had learned from the experience and would ensure that no-one without a licence could possess his firearms should be given little if any weight in light of the overwhelming content of his submission, directed as it was to contesting the substantive issues of public risk raised by his conduct with respect to his firearm and in respect to which he had been found guilty.
In oral submissions at the hearing the respondent reiterated those points and drew attention to Hudson LCM's comments in the criminal case, pointing out that there were a number of other possible precautions that the applicant had not taken at the relevant time. The rifle was not locked away and was uncovered and visible until the police arrived. The applicant could also have taken the rifle with him when he went to meet the police. His Honour had, however, been favourably impressed by Mr Wilson's credibility.
The offence concerned the period of time when the applicant was in the shed, when the bolt was still in place and there was no covering over the firearm. He was too far away from it to have control over it, but other persons on the property could see it. As no conviction had been recorded, he was not disqualified for 10 years from holding a licence but in the case of DPP v Wilson (no relation), James J had stressed that firearms must be stored and transported safely. As the applicant had failed to take reasonable precautions, he failed in the criminal case.
The finding was very serious and reflected on his fitness and propriety to hold a licence. There was an offence committed by an experienced shooter who should have realized the risk involved, when his firearm could be seen by a trespasser on the property. His wife was in the house but was not licensed. An unattended firearm could pose a safety risk and could be stolen. The applicant said he had learned from the experience, but the question was whether, going forward, he would in future be sufficiently alert and alive to the necessary precautions. He said that he would be able to see any intruders, but in the country there is always a chance of trespass. He would need to make sure that there was no repetition of the offence and persuasive evidence would be needed before he could be granted a second chance.
There was a further matter, one that was not referred to in the written submissions, the respondent said. The applicant admitted that he should have notified the registry of his address change but had not realized it at the time. This was not a technical aspect of the scheme but part of the exercise of the privilege relevant to the safety system. The movement of firearms required timely updating for public interest reasons.
In reply the respondent referred to the applicant's criticism of the emphasis placed on the background and behaviour of his son Mark that had led to the issuing of an FPO against him, which he said had coloured the view taken of his own application. That material, however, was at the time potentially relevant to the applicant because at one stage he had said he needed his son's help, with such matters as opening gates, in their proposed contract shooting business, which tended to undermine his genuine reason for holding a licence. The evidence now available, however, showed that he did not now require his son's assistance.
The applicant had stressed his son's success in having the FPO set aside. But this tribunal had found that Mark had changed. He had a favourable psychologist's report and the tribunal's own assessment was positive. Now, however, Mark was facing some further charges. Nevertheless, none of that was now strictly relevant and the respondent was relying instead on s 39 and cl 17. The question was, had the applicant learned from those matters?
The applicant is a pensioner aged 71 who lives on a 25-acre rural property about 20 minutes' drive from Gloucester. He does not carry livestock on the property, but until he lost his firearms licence he helped neighbours and other farmers in the suppression of ferals and other vermin in an area known to have a wild dog problem. He did not charge property owners for his services, but was given free fuel and earned an income from the sale of skins, supplementing his age pension.
He accumulated an unimpressive criminal history in two periods between 1964 and 1985, which included a dishonesty offence relating to a false statement under the then firearms legislation, but that matter occurred just over 34 years ago. The respondent treats the applicant's prior criminal history as being historical in nature and having been considered in its appropriate historical context at the time the applicant was first granted a firearms licence under the Act. His record over the past 34 years was unblemished until the safe storage charge arose.
The respondent's primary basis for the submission on fitness and propriety, however, is that on 9 May 2019 he was found guilty of an offence under s 39 of the Act of failing to "take all reasonable precautions to ensure" a firearm is kept safely, is not stolen or lost and does not come into the possession of an unauthorized person. Without proceeding to conviction, the Local Court dismissed the charge under s 10(1)(a) of the CSP Act.
The respondent submitted that significant weight should be given to any offences under the Act, however minor. In this case the breach was very serious and reflected on the applicant's fitness and propriety. As an experienced shooter, he should have realized the risk when his rifle on the veranda could be seen and was not in his sight or reach. His wife was in the house, but she was not a firearms licence holder. It could not be assumed that in the future he would be alert to preventing further contraventions, especially as he repeatedly asserted to police that his rifle was "in use" at the time when he was working in the shed and did not require to be locked away, disabled or concealed.
It is not disputed that the applicant committed an offence under s 39. Violations of that section are frequently treated as sufficient ground for licence revocation. His repeated assertions at the time of the incident that the firearm was in use cannot be accepted because, as the respondent pointed out, it was not within his sight or reach.
On the other hand, the contravention occurred in a rural area where the nearest neighbours were between 300 m and 1 km distant. The house was set back 300 m from the unsealed road, which was not a main road and was some distance from any principal thoroughfare, and the front gate was kept locked. It is not disputed that the applicant was able to see anyone entering the property, provided he was looking. Mrs Wilson was in the house, and although she was not licensed, she could have alerted her husband to the presence of any stranger. The fact that the applicant's son was living at the house (although at the time away on holiday) gave the respondent some concern as he had only recently been discharged from an FPO, but that risk factor, whatever its gravity, no longer exists as the son has not lived with his parents since October 2018.
There was no ammunition in or near the rifle, but as Hudson LCM pointed out, the question is not whether the firearm could be used, but whether it could come into the possession of an unauthorized person (sound recording part exhibit R2). The applicant's wife was such a person, even though there was no suggestion that Mrs Wilson had any intention of using the rifle, or any desire to do so.
His Honour was impressed by the applicant's candour and said that while there had been a clear breach of s 39, it was "a highly technical breach" and dismissed the charge without penalty or condition, though expressly disavowing any intention of influencing any other authority (such as this tribunal) on the matter.
The degree of risk to public safety is an important consideration in relation to the consequences of the breach for an applicant's fitness and propriety to hold a licence. Frequently quoted in this context (including in the internal review decision, but without citing the relevant authority) are Hennessy DP's comments in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] where her Honour said that in considering public safety under the Act, "the Tribunal must be satisfied that there is virtually no risk" to public safety, while acknowledging that it would never be possible to be sure that a person presented absolutely no risk. That case dealt with the "fit and proper person" criterion, but the comments have been held to apply to the public interest test as well.
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [7] that the Ward decision had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence: "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests".
In Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124, [55] - [57] I surveyed a number of the recent authorities on that point, and there is no need to repeat that discussion here. It may be helpful, however, to note that in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "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 respondent drew attention to the applicant's repeated assertions that the rifle had been in use at the relevant time, a proposition of law that cannot be accepted, and said that it "raises questions about the applicant's attitude to the privilege and responsibility of firearms ownership and safe keeping" and meant that little if any weight should be given to his claims that he had learned from the experience and would henceforth ensure that no-one without a licence could possess his firearms.
The applicant has, however, acknowledged responsibility for the offence and accepts that he was in breach of the legislation. He has expressed remorse for his contraventions. An erroneous view of the law held in the past need not equate to a propensity to contravene it in the future. The firearms legislation is complex, and even the police responsible for enforcing it have been known to assert, and act upon, a mistaken interpretation of it (e.g. Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272, [69]).
Further, the applicant has a clear incentive for punctilious compliance with statutory requirements. He has definite plans to conduct a business as a professional shooter, an occupation that he has pursued with success in the past, thereby supplementing his presumably modest age pension. Loss of income is not an irrelevant factor in the exercise of discretions under the Act, subject to the overriding weight of the need for public safety and other relevant considerations (Commissioner of Police, New South Wales Police v Gainey (GD) [2007] NSWADTAP 23, [23]). In Gibson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 212, [24], Higgins JM said categorically that "I do not agree with the submissions of the Commissioner that the question of loss of income is an irrelevant factor in the exercise of his discretion" as to whether or not to revoke a firearms licence. Having been without his licence, and the resulting income stream, for about 20 months appears to have sharpened his awareness of the need for conscientious compliance.
The respondent also relies on the applicant's admitted failure to notify the firearms registry of the change of safe storage address of his firearms after his son Mark became subject to the FPO. His explanation was that he sent the firearms to a safe storage location on a property at Orange and, intending to contest the order, had assumed that they would be returning for storage at the subject premises before long.
He was not, of course, entitled to rely on such a self-serving assumption and misinterpretation. The provisions relating to the movement of registered firearms form an integral part of the regulatory structure. In practical terms, however, the danger to public safety was minimal, as the firearms were at all times in compliant safe storage.
The applicant has committed two admitted recent contraventions of the firearms legislation, a serious matter in the licensing context, even though neither incident involved any significant direct danger to the public. The question, as the respondent contends, is whether the applicant can be relied upon to comply fully with the licensing legislation in the future.
Over the past 34 years he has had a clean record and no history of violence, threatened violence or firearms misuse. In the Local Court hearing, Hudson LCM made a point of stating that he had been impressed with Mr Wilson's candour and credibility, and I see no reason to differ from that view. That observation allows the readier acceptance of his assurances that he has learned from the incidents and therefore would henceforth ensure the safe keeping of his firearms in all situations.
The experience of being without a licence for some 20 months has no doubt sharpened the lesson, while his business plans to return to his prior work as a professional shooter give him an incentive to remain fully compliant with the legislation. Mark Wilson has not been in residence at his parents' property for the past 15 months, thereby removing a possible complication for the future. On all the evidence, therefore, the allowing the applicant to regain access to firearms does not constitute what Montgomery JM in Webb called a "real and appreciable risk" to public safety. I find that the applicant is a fit and proper person to hold a firearms licence.
Those concerns are considered above in the context of fitness and propriety, and there is no need to repeat that discussion here. Though the applicant's conduct created a risk, it was more in the nature of what Montgomery JM in Webb called theoretical risk, rather than a "real and appreciable risk". Through the loss of his licence for 20 months the applicant has effectively paid a penalty for that contravention, as well as for the breach of cl 17.
Also relevant is Wright v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 98, [127], where Scahill SM in the context of tattoo parlour regulation said that there is a public benefit in persons being able to engage in gainful employment rather than being supported by the taxpayer. Enabling a man aged 71 to supplement his pension by engaging in business as a professional shooter, assisting farmers and graziers in the area to control wild dogs and other ferals and pests, an activity in which he has engaged successfully in the past, thereby helping to protect the environment and primary industry, is in the public interest. It is a benefit that must be balanced against the overriding need to protect public safety and other relevant considerations.
The preponderance of the evidence, in my view, leads to the conclusion that it would not be contrary to the public interest for the applicant to recover his firearms licence, and I so find. Consequently, the decision under review should be set aside and a category AB firearms licence should be issued to the applicant.