Martin v Commissioner of Police NSW Police Force

[2014] NSWCATAD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Martin v Commissioner of Police NSW Police Force [2014] NSWCATAD 20
Hearing dates:	19 December 2013
Decision date:	03 March 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior member
Decision:	The decisions under review are set aside
Catchwords:	Firearms licence/weapons permit revocation and additional licence
Legislation Cited:	Firearms Act 1996 Weapons Prohibition Act 1998 Administrative Decision Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Shi v Migration Agents Registration Authority [2008] HCA 31 Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 Wiltshire v Commissioner of Police, New South Wales Police HYPERLINK " \o "View Case" [2005] NSWADT 75Ward v Commissioner of Police, New South Wales Police Service HYPERLINK " \o "View Case" [2000] NSWADT 28 Commissioner of Police v Toleafoa HYPERLINK " \o "View Case" [1999] NSWADTAP 9 R v Cromarty [2004] NSWCCA 54 AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228
Category:	Principal judgment
Parties:	Paul John Martin (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Applicant: Mainstone, Mainstone Lawyers Respondent: Zoppo, Sparke Helmore
File Number(s):	133253 133350

reasons for decision

Background

1. The Applicant, Paul Martin, seeks review the decision of the Commissioner of Police, the Respondent to revoke his Firearms Dealers licence, his Theatrical Armourer Dealer licence, and his Prohibited Weapons Dealer permit and to refuse his application for a Theatrical Weapons Armourer permit.

1. The Applicant has also applied for firearms licences for Categories A, B and G. His application was refused on the basis that it was not in the public interest that he have such licences.

1. The Applicant has been authorised for firearms in NSW on a personal basis since at least 1989. Over the years he has held a wide variety of licences. In 1996 the Applicant, trading as Paul Martin's Australian Military History, ('the Applicant's business') was issued with his first Firearms Dealer licence and he successfully reapplied for that licence three times. The premises at which the Applicant stored his firearms were inspected and approved on 5 or 6 occasions between 2003 and 2011.

1. The Applicant and his wife cared for several of their grandchildren. Police had attended their residence on several occasions due to domestic incidents involving the Applicant's grandsons, resulting in an Apprehended Violence Order ('AVO') for the protection of the Applicant and his wife. On 11 July 2012 police were again called to the Applicant's residence due to the conduct of one grandson, who was making threats to damage property ('the domestic violence incident'), and a further AVO was issued. One of the Conditions of the AVO was that police requested that the requirement for police to seize all firearms at the premises be waived.

1. On 19 July 2012 police from the Local Area Command and the Alcohol and Licensing Enforcement Command, assisted by personnel from the Australian Defence Force, the Firearms Registry, and the NSW Police Armoury, attended the Applicant's premises for an audit and to inspect the security of the firearms relating to the various licences and permits held by the Applicant and on behalf of the Applicant's business. As a result, 12 charges were laid, including possession of unregistered firearms and offences relating the safe storage of firearms and prohibited weapons.

1. The Applicant was also found to have in his possession have a flame thrower which had been rendered inoperable as a result of holes being punched through the fuel tanks. As s.4(2)(a) of the Weapons Prohibition Act 1998 provides that for the purposes of that Act anything that would be a prohibited weapon if it did not have something missing from it, or a defect or obstruction in it, is taken to be a prohibited weapon, the inoperable flame thrower was nevertheless deemed a prohibited weapon pursuant to cl.1A(3) of Schedule 1 of the Weapons Prohibition Act.

1. The Applicant was charged with nine counts of Possess unregistered firearm-not proh[ibited] firearm/pistol-TT. He pleaded guilty to these charges but they were dismissed without conviction pursuant to s.10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. A further three charges relating to inadequate safekeeping were withdrawn.

Relevant Legislation

1. In respect of a Firearms Dealer licence and a Theatrical Armourer Dealer licence, a licence may be revoked if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence: s. 24(2)(b)(ii) and s.24(2)(d) of the Firearms Act 1996 and cl.19 Firearms Regulation 2006

1. In respect of a Prohibited Weapons Dealer permit, a permit may be revoked if the Commissioner is satisfied that it is not in the public interest for the permit holder to continue to hold the permit: s.18(2)(a) and s.10(4) of the Weapons Prohibition Act 1998 ('the WP Act'). Section 18(2)(b)(ii) of the WP Act prescribes that a permit may also be revoked if the permit holder contravenes any provision of this Act or the Weapons Prohibition Regulation 2009, whether or not the permit holder has been convicted of an offence in respect of the contravention.

1. In respect of a Theatrical Weapons Armourer permit, the Commissioner may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest: s.10(4) of the WP Act.

1. Section 63 of the Administrative Decision Tribunal Act 1997('the ADT 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. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Evidence

1. Evidence was given by SGT Thomas of Hurstville LAC and INSP Dykes of the Alcohol and Licensing Enforcement Command and SENCONST Ferguson, Licensing Officer of Hurstville LAC. Confidential evidence was given by an expert in military ordnance ('the expert').

1. The Applicant gave evidence. A detailed statement was provided by a colleague of the Applicant, Mr Cuddy. There were multiple character references and medical reports in relation to the Applicant and his wife.

1. SGT Thomas' evidence was in relation to responding to the domestic violence incident in July 2012. She said she conducted an inspection of the Applicant's firearms 'of sorts'. She had been concerned that given the Applicant's age, he might be overpowered by his adult grandson and the keys to his safe storage facility taken from him. She came to the view though that the firearms were safe, providing the Applicant had the only key to the garage around his neck. Individual keys for vaults inside the garage were hidden inside the garage, unlabelled. Hers was not a formal inspection for the purposes of the legislation. She had estimated that a full inspection would require 3 police for 3 days. SENCONST Ferguson gave evidence of securing the garage with a padlock until it could be formally inspected.

1. INSP Dykes gave evidence that he had attended the Applicant's premises about week later for a formal inspection. INSP Dykes considered the structure of the garage to be unsatisfactory from a safety point of view because it had 2 entrances and could be accessed from the house, and the locks and the alarm system were not compliant. He said the garage door was not reinforced although the Applicant's evidence was that at 8mm thickness, it is double a standard roller door and the gate was made of steel, forming a steel cage. The brickwork of the garage was single brick only whereas concrete or double brick is required. INSP Dykes resiled somewhat from this position and said the structure probably did comply. The Applicant said he assumed his premises and security measures complied because he had been inspected, without adverse comment 5 times. Mr Cuddy wrote in his statement that the new handbook in relation to additional safekeeping requirements was not published until September 2012, that is, after the audit of 19 July 2012.

1. SENCONST Ferguson gave evidence of the cramped garage which had several large safes and a vault. Within the garage there were a number of heavy double door steel safes but INSP Dykes found ordnance 'scattered about' in the garage.

1. The Applicant denied that the flamethrower had been on the floor of the garage - it was on the wall, as it had been for 5 years and Police had seen it there during each inspection during those years. He said, in any event, when he bought it at a government auction about 20 years ago it had already been de-activated by the Army. He described it as 'a piece of junk'. At that time he only needed a 'Commissioner's Permit', a copy of which was produced. He had also had the rocket launcher for about the same period and Police had previously been unconcerned about it. SENCONST Ferguson was not sure if the rocket launcher had been on the floor or attached to the grill. In relation to the signal cartridges, he said they were in the bottom of the ammunition safe which he had not opened for about 5 years.

1. SENCONST Ferguson thought initially that there were about 40 unregistered items but eventually that number was reduced to nine after checking the records. In relation to 3 of the firearms the Applicant said he had acquired them from a deceased estate and had had them for 12 months without registration. One he had located in a bin about 2 weeks beforehand and had removed it for safekeeping. He conceded he knew he was supposed to register weapons within 24 hours of acquiring them.

1. In the course of the inspection the Applicant had volunteered that he had a bag - like an army duffel bag - locked in the rear of his ute. In it were grenades and rockets. There were also display boards with rockets and grenades cut in half for display purposes and he understood the Applicant had just done a school display. The items should not have been left unattended in the ute.

1. It was submitted on the Applicant's behalf that I should not take into account the 3 charges which were withdrawn. Those matters related to failure to maintain safe storage of a hand grenade, a projectile without fuse and 2 mortar cartridges in the back of the Applicant's ute and 5 signal cartridges in the garage. The Applicant had noted that the charges had been withdrawn following representations on his behalf. In the internal review the Respondent claimed that the safekeeping charges were withdrawn because that it was considered that the police had committed the same offence when they initially secured the dealership premises with a padlock and did not seize the weapons. Consequently it was considered that the charges were withdrawn on a technical consideration, and not because the safe storage exceeded recommended and/or legislative requirements.

1. In Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 at [20] the Appeal Panel said:

It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed.

1. Consequently, it is appropriate that I take into account the facts which gave rise to the charges.

1. The expert gave evidence in relation to the material located in the ute that the hand grenade presented a low risk because it lacked a detonator. He described the risk as 'minute' if the grenade were stuck with a reasonable blunt force if there were some residue but he was unable to identify if there was in fact any residue. There would be no likelihood of explosion if it were in a display case. The Applicant asked him to dispose of the grenade. As to the expert's evidence about the residue the Applicant said he could see about 5 grains 'like sugar'.

1. The expert said the other material located was all in a poor state of repair. The evidence was that none would explode spontaneously and would require some other action or equipment to discharge at all. In relation to the signal cartridges he said that there was a possibility they could ignite 'like a cracker' if the primer were struck.

1. In relation to the items in the ute, the Applicant said they had been part of a school display the day before the scheduled audit by INSP Dykes. That day he asked 3 times, without success, that he be permitted to secure the items from his ute in the garage. (INSP Dykes said in his evidence that he was unaware this had occurred.) Instead the Applicant had locked the items in the rear of the ute and hidden them under things; there was a padlock on the tailgate and locks on the canopy as well as chains; and the ute was backed into the driveway.

1. The Applicant provided a detailed statement and gave evidence about his long history as an expert in firearms and military memorabilia. Of the 800 -900 items he owns, many are of historical significance, eg Henry Lawson's rifle, a pistol manufactured by Darcy Dugan whilst in prison, and a 1905 Lee Enfield rifle, as used by the Australian Light Horse Regiment. He has no convictions.

1. The Applicant's evidence was of his debilitating illness which prevented a scheduled stocktake in December 2011. His wife also was ill. He provided medical evidence in relation to their conditions. He denied that he had become complacent, and said instead that it was his poor health that had been the reason for his lack of attention. The Applicant's evidence was that he is keen to undertake a stocktake and get rid of a lot of stock which is 'rubbish'. He plans to reduce his collection by at least half. He plans to retain that which is of historical significance, and military memorabilia especially in relation to both World Wars and Vietnam, which are relevant to his Theatrical Armourer permit.

1. He said his grandson no longer lives there and he has not seen him since the domestic violence incident.

1. In the days before the hearing SGT Thomas and SENCONST Ferguson had attended the Applicant's premises to conduct another inspection. Previous issues in relation to security cameras had been addressed. She said she had dealt with the Applicant for over 12 months and had always found him to be approachable and co-operative. Generally the premises were regarded as satisfactory. SENCONST Ferguson said he was confident the Applicant would complete the required entry log and then there will be no further issue in relation to the premises.

CONSIDERATION

1. It is well accepted that any licence in respect of firearms or weapons, is a privilege and not a right. Responsibilities of 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, New South Wales Police[2005] NSWADT 75 at [25].

1. The underlying principles of the Act stated in s.3(1) 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. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy 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 not pose any risk to public safety.

1. In Commissioner of Police v Toleafoa[1999] NSWADTAP 9, the Appeal Panel said at [25], in the context of the licensing regime for the security industry, that the public interest is:

... an inherently broad concept giving the appellant 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.

1. I accept that the public interest requires licensees be aware of, and comply with, legislative requirements: Vella v The Commissioner of Police [2003] NSWADT 91 at [41]. Firearms dealers have additional responsibilities, especially as they may have large numbers of firearms/prohibited weapons in one location, and this in itself poses some risks. While the Respondent did not dispute that the ill health of the Applicant and his wife, had created unforeseen circumstances which may have prevented a planned stocktake in December 2011, it submitted that, had the Applicant adhered to his responsibilities as a firearms dealer more diligently, there would have been no unregistered firearms found at his premises, and all firearms and prohibited weapons would have been securely stored.

1. Failure to register a weapon is not to be treated lightly: R v Cromarty [2004] NSWCCA 54. At least 3 unregistered firearms had been in the Applicant's possession for some months and no action had been taken to affect registration or surrender the firearms to police. I accept that it was also open to the Applicant to have immediately surrendered any of the firearms or weapons to police for destruction if excess to his requirements.

1. The Respondent accepted that the Applicant's contraventions did not evidence any criminality. Indeed, the Applicant is a person with no convictions at all. However, a fundamental principle shared by both the FA and WP Acts is that possession and use of items authorised under those Acts is a privilege to be considered in the context of the need to ensure public safety.

1. The Respondent accepted that the Applicant's deteriorating health may have made it more difficult for him to keep on top of the responsibilities associated with his many licences and permits.

1. However, following the approach of JM Frost in AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider there to be several factors that heavily weigh in the Applicant's favour in considering the broader public interest:

• The issue of safekeeping of the firearms/weapons has now been satisfactorily resolved to SENCONST Ferguson's satisfaction.
• The Applicant's grandson, whose conduct had given rise to the inspection which led to charges being laid against the Applicant, no longer lives with the Applicant.
• Since first acquiring a firearms licence in about 1989, the Applicant had a history of compliance as evidenced by 5 previous satisfactory inspections.

• Having 9 unregistered firearms in circumstances where the Applicant's stock was about 900, was not a major violation. I accept the Applicant had been ill and for that reason had not been as vigilant in his record-keeping as he should have been.
• The Respondent in its internal review, and before me, did not dispute that the Applicant was of excellent standing in the community, both as a volunteer and as a valued schools presenter of Australian Military History. References were provided by Museums, and local and government organisations dedicated to the preservation of historical artefacts and memorabilia. These referees generally found the Applicant to be an honest person of excellent character. They were unanimous in their praise of the Applicant's knowledge, expertise, and generous assistance.
• The Applicant holds items of historical significance, some of which have been referred to above. The preservation of those items may not be assured if the Applicant is obliged to dispose of them if he no longer holds the relevant licence.
• The Applicant essentially acknowledged that his extensive collection has got out of hand. He has foreshadowed that he proposes to dispose of a large amount of stock, either through sale, or having the Army or Police dispose of material.

1. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold or continue to hold the firearms licences and permits subject of this application for review.

DECISION

1. The decisions under review are set aside.

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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