Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wynne v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 67 Hearing dates: 26 February 2024 Date of orders: 11 March 2024 Decision date: 11 March 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: Decision under review affirmed. Catchwords: LICENSING — firearms licensing — licence revocation — pistol stolen or lost — delay in reporting — fit and proper person — public interest Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11; (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 316 Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 EMB v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 247 Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 70 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Himo v Commissioner of Police [2021] NSWCATAD 321 Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366 Joseph v Commissioner of Police New South Wales Police Force [2017] NSWCA 31 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 O'Brien v Commissioner of Police [2022] NSWCATAD 259 Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184 Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 Texts Cited: Nil Category: Principal judgment Parties: Michael T Wynne (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: Applicant (Self-Represented) A Gallego (Office of General Counsel, New South Wales Police Force) (Respondent) File Number(s): 2023/00345218 Publication restriction: Nil REASONS FOR DECISION 1. The applicant Mr Michael Timothy Wynne applied to this tribunal on 31 October 2023 for review of a decision by the respondent Commissioner on 27 September 2023 to revoke his category ABH firearms licence and large calibre pistol permit. 2. The applicant had been granted a category ABH licence on 19 March 1999, which expired on 13 May 2004. He was then issued with a category ABH licence on 25 September 2009, which was renewed on 19 November 2014 and 19 November 2018. He was issued with a large calibre pistol permit on 10 December 2011, which also was renewed on 19 November 2014 and 19 November 2019. 3. On 19 May 2023 he attended Bathurst police station to report a firearm stolen or missing. He told police that he had separated from his ex-wife Christina [surname] in January 2022, thereupon moving to his current address at Oberon. Christina had continued to live at their former home in Gingkin, which is not far from Oberon, which was where he continued to leave his firearms stored. In about March 2022 he moved his gun safe to his present address, but did not inspect the contents, believing his firearms all to be inside. He told police that some time around August or September 2022, he had realised that a handgun was missing from the safe – a Colt model Govt BSTS .38 Super (which appears to be a version of the 1911 semi-automatic). 4. He said the safe showed no signs of forced entry and the other firearms were accounted for. He immediately suspected his ex-wife, believing she had removed it while his guns were stored at the Gingkin address. He confronted her about it, but she denied the allegation and continued to do so over the succeeding months. He had stored the keys to the safe under a piece of carpet at the Gingkin house and believed that his ex-wife may have known where they were hidden, but he denied ever allowing her access to them. The following day police suspended his licence and took possession of his remaining firearms, pending an investigation. 5. On 23 May 2023 police attended at his address after he contacted them and stated that he had received a number of texts the previous day from his ex-wife about money being owed and that she had then telephoned him, saying that she believed he had "set her up" and that "that object is in your backyard". Police then found a plastic shopping bag at the rear of the property behind a locked gate which contained the missing gun. 6. On canvassing the area police learned that a witness had seen a white Mustang stopped in front of his house and described a woman who had opened the boot, pulled out a plastic bag and thrown it over his fence. The car and the description of the woman matched his ex-wife, who was subsequently arrested. On interview she made admissions of finding a handgun inside her garage a few days before and had been scared, eventually packaging it up and throwing it over his locked gate. She claimed to have no idea how it ended up in her garage. On 22 August 2023 his licence and permit were revoked. 7. The applicant sought an internal review of the revocation decision on 11 September 2023, the decision being affirmed by the respondent on 27 September 2023. He applied for administrative review in this tribunal on 31 October 2023 and the matter came on for hearing on 26 February 2024. Applicable legislation 1. The Firearms Act 1996 (NSW) s 24(2)(a) (the Act) provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(3)(c) stipulates that the Commissioner must not issue a licence unless satisfied that the storage and safety requirements as set out in part 4 are capable of being met by the applicant, while s 11(3)(a) states that a licence must not be issued to a person unless the Commissioner (and on review this tribunal) is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. 2. Section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention. A licensee must immediately notify police of the loss or theft of a firearm (s 37) and supply particulars within 7 days. Residential address changes must be notified within 7 days (s 69) and storage address changes within 14 days after the change occurs: Firearms Regulation 2017 (NSW) (the Regulation), cl 17(3). 3. Under s 24(2)(c) a licence may be revoked if "the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". Section 24(2)(c1) provides that a licence may be revoked 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. Section 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. In that regard cl 20 of the Regulation states that "the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence". A permit may be revoked for any reason for which a licence may be revoked: s 30(4)(a). 4. The issue in this application is thus whether the correct and preferable decision is to affirm the licence and permit revocation on the ground that the tribunal cannot be satisfied that he is still a fit and proper person to possess firearms because inter alia he has contravened a provision or provisions of the Act and because it is no longer in the public interest for him to continue to hold the licence or permit. The evidence 1. The respondent did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant. 2. In oral evidence at the hearing the applicant adopted his signed witness statement dated 1 June 2023 (exhibit R2) in which he stated that he is currently living in Oberon and works in Bathurst as a wardsman at Bathurst Private Hospital, having done so for the past 18 months. He was married to Christine [surname] for about 13 years and there are two children of the marriage, a boy aged 13 and a girl aged 11. They share custody of the children and the girl lives with the applicant and the boy with Christina. 3. The relationship broke down because of irreconcilable differences and there was never any violence involved They separated in January 2022 when he left the home at Gingkin where they had been living for a number of years and moved to Oberon, Christine moving to Bathurst a few years later. He held an ABH licence, owned five firearms and was a full member of the Oberon Pistol Club. His firearms were not of great value, except for the Colt which he believed cost about $2000. They were all stored at his property at Oberon, where he had a safe for the long arms and a separate one for the pistols. All ammunition was stored in a separate locked box within both safes in accordance with the requirements. 4. When he and Christina were living together at Gingkin he had the safes inside a wardrobe, in one of the bedrooms. They were bolted to the floor and wall. There were two sets of keys, both of which were hidden inside the house, one set under a piece of carpet and another in another wardrobe. They were hard to find and he was reasonably sure that he kept the location of the keys secret so that they would not be discovered by family members or other people who might visit from time to time. 5. When he moved out of the Gingkin house in January 2022 and relocated to Oberon, the firearms safes with his firearms remained at Gingkin while he organised himself at his new residence. After a few months he returned to the Gingkin address, removed the safes and took them to Oberon, where he reinstalled them in accordance with the legal requirements. He did not check at that time to see whether all the firearms were actually in the safes, as he had a couple of other pistols that he had since sold. He had simply assumed that the guns were in the safe as he had left them. 6. When he decided to clean the safe and inspect the guns around May 2022, he noticed that the Colt was missing from the pistol safe. In his view the only person who would know its location was Christina, as she was living in the house at the time with their son. Their daughter had left and gone to live with the applicant by then. 7. He immediately contacted Christina and told her that he was missing the Colt. She denied having it and he knew the children did not know how to access the safe. It was fairly obvious to him that Christina had the firearm, for although she continually denied having it, she would say things like, "How am I going to protect myself?" 8. He did not immediately report the missing firearm to the police as he was sure he could persuade Christina to return it to him at some point. He was trying to avoid all the associated dramas and the fallout that would surely come if she were found to have taken it. She does not hold a licence for long arms or pistols. 9. On 13 May 2023 he had finally had enough and went to her house at Bathurst, pleading with her to return the gun. She continued with her denials of having it. On Monday 22 May 2023, he received a series of text messages from Christina, one of which stated, "You set me up Mickey. I am going to see police". He texted back, "See police about what", to which she replied "You better go home immediately". Some time later she telephoned him and said, "I've thrown THAT over your fence. He replied, "What are you talking about?" And she said "I've thrown that thing over your fence". She then ended the call. He assumed she was talking about the pistol. He was at work at the time and was unable to organise to collect it. He tried to ring Oberon police to see if they could go and have a look. It was then that Detective Newman telephoned him to follow up on the investigation and he was able to tell the detective what he had just been told. 10. When he left the Gingkin residence in January 2022 with his daughter aged 13 he left the safe where it was. He planned to move it, but had been preoccupied with settling in to the new residence at Oberon and organising his daughter's enrolment at school. There had been two safes, one for rifles and one for handguns. They had been bolted to the wall and floor and could not be moved without opening them and moving the guns, which he stored in a sock. He moved the safe to Oberon two or three months later using a trailer and a trolley as there was a good deal of other stuff in the safe, he didn't realise that the Colt was missing. 11. When he had moved the safes he had not inspected them, being sure that all the firearms were there, but after he had installed them he found in about May that one handgun was missing. He was sure that Christina had it and begged her to return it to him, trying to explain to her the ramifications of the situation, including that she had custody of their son. He was worried that she would prevent him from seeing their son. She had never held a licence. 12. He had informed the police on 19 May 2022. When it was put to him that he was not exercising responsible control over the pistol he said it was complicated but admitted that he should have reported the matter earlier. Christina had never clearly admitted having the gun but from things that she had said he knew she had it. He had not taken the keys from the Gingkin house because they were well hidden, although he did not deny that she must have found them. He explained that he had been busy with their daughter and making arrangements with schools. 13. He had confronted Christina about the matter on 19 May 2023 and she had asked him how could she defend herself. He had told her that this was her last chance and reported the loss to the police next day. When Ms Gallego pointed out to him that in his internal review request of 11 September 2023 (exhibit R1, annexure 9a) he had written "When I noticed the missing firearm, I immediately contacted the Bathurst Police, to report the missing firearm" but had actually waited for 9 months after realising it was missing, he admitted that there were "discrepancies" in his account but said he had been as accurate as he could be. He did not contradict Ms Gallego's observation that his change of address notification stated that he had moved from Wahroonga to Oberon on 4 June 2020 (id., Annexure 4(i)) but did not mention Gingkin (id., Annexure 8(e)). 14. As regards his traffic record (id., Annexure 3), he said his driver licence had been suspended "just once, when I was a kid" but when it was pointed out that there had been five suspensions, the latest in March 2022, he said they had not been serious violations, although the 2001 PCA contravention represented an "error" on his part. 15. He said that he was not good about dates but had owned handguns since 2000 and had an exemplary record until recently, having passed multiple inspections. He should have reported the loss earlier but it was "a tough time" and he himself was the victim of a crime. His driving record was not relevant. He took the situation all very seriously and asked for a second chance. Applicant's submissions 1. The applicant had not filed any written submissions but at the hearing by way of oral submissions denied that he had failed to report the loss of the pistol for nine months, averring that it was closer to 5 or 6 months, because he had not checked the contents of his safe when he had left the matrimonial home at Gingkin. He had reported the loss to the police first, after which Christina had thrown the gun over the fence. He had discovered that it was missing on about 19 May 2022 and had contacted Detective Newman the same day. He had mixed up the dates but had been trying to recover the firearm. 2. He was not irresponsible. His driving record was "not great" but most of the violations, except for the PCA, were not serious. He had an exemplary record of compliance with the firearms legislation since obtaining a minor's permit in 1990. 3. He admitted his mistakes but wanted a second chance. He had wanted to retrieve the Colt without drama but realised that he should have reported it to the police. As he had all the ammunition, there was no risk to the community. It had been an emotional time with the divorce and the custody arrangements, besides his ex-wife's being a thief. Consideration Approach 1. Under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (NSW) (s 30) and the Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind. 4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]–[34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 (NSW) do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]–[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]–[12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction. Fit and proper person 1. The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is no longer a fit and proper person to hold a firearms licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". 2. 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 their 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. 1. 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. 1. 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 (Smith). 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]. Safe storage and reporting breaches 1. A central part of the respondent's case on fitness and propriety is the applicant's safe storage breaches and failure to inform police that the firearm was missing. Police event report E 80484153, 19 May 2023 (exhibit R1, annexure 4(e) relates that in about March 2022, the applicant moved his firearms safe from the Gingkin residence to his new residence at Oberon but failed to do a proper inspection of his firearms at the time, having assumed that they were all inside the safe. 2. He explained that some time around August or September 2022 he realised that his Colt, which his wife had purchased as a present for him, was missing from his safe. There were no signs of forced entry into the safe and the other four firearms were accounted for. The applicant immediately suspected that Christina had removed the pistol while it was stored at their Ginkin residence. He immediately confronted her about the missing gun and accused her of having stolen it. She rejected those allegations, but in the subsequent months he continued to question her about its whereabouts, asking her to return it to him as she was not licensed to have firearms and was not the legal owner. Christina continued to deny any knowledge of its whereabouts. 3. On 19 May 2023, the applicant attended Bathurst police station to report the firearm as stolen or missing, alleging that Christina was in possession of it and had stolen it from his safe some time between January and March 2022, when it was still located at the Gingkin address. He explained that he used to store the safe keys in the house under a piece of carpet and that Christina had possibly discovered where they were hidden. He thought that she might have stolen the Colt as she had paid for it and might have felt she had a right to possession of it, as it was worth about $2000. He also said that when he moved out, Christina would often tell him she felt scared living on her own and "what if she needed a firearm for her protection". 4. Police who then attended at the Oberon address were informed by a witness that a white Mustang had stopped at the location and a lady of Asian descent had opened the boot and pulled a plastic bag out, which she then threw over the fence. Police found the pistol there on 23 May 2023. 5. The report then states that when later interviewed by police, Christina stated that she had found the pistol inside her garage only a few days before. She said the garage was unlocked and was easily accessible to everyone she knew. On finding the gun she was frightened, wondering what she should do with it. She subsequently packaged it as found and threw the packaged firearm over the locked gate of the applicant's residence. She claimed to have no idea how it came to be in her garage. At that stage no charges had been laid and it does not appear that she was subsequently charged. 6. Further details of Christina's version of events emerge from the transcript of her electronically recorded interview with police, conducted by Detective Senior Constable Newman on 23 May 2023 (exhibit R3). She said she had divorced her first husband in 2003. They had operated a corporation in China and had earned a substantial amount of money from it. She had first met the applicant in 2005 and they had married on 24 February 2009. He was a gentle man, a singer, and was never violent, but seldom worked except on occasional musical engagements, like his father before him who had also been a usually unemployed singer, and said he was "broke". After the wedding they moved to a house at Seaforth which he had urged her to purchase as he wanted to have a boat, which she also bought for him. They moved to Oberon in 2018 as his father lived there and he wanted her to buy a farm in the Oberon district. 7. They had surveyed the Oberon district looking for a farm to purchase, but in the meantime he suggested they buy a house in Oberon in the first instance and then look for a farm. She purchased the Oberon property in 2018 or 2019 with her money, but later discovered that he had not arranged for her name to be on the title. She had also purchased the white Mustang at his behest and also paid for all his guns, including the Colt. When he wanted something he just asked her to pay for it: "I say, OK. Why [while?] I have money, I just pay. But now I don't, my money ran out I just, I just really feel sorry to him" (id., 18). She had given him all her money and then had had to find a job, being currently employed as a cleaner at Bathurst Base Hospital. He was working two days a week as a wardsman at another Bathurst hospital. 8. When he left the Ginkin house and moved to Oberon, he did not call it a separation but said he needed to live in Oberon so that their daughter, whose school was in Oberon, would not have to travel to school from Gingkin. 9. She said she had no access to the keys to the applicant's gun safe and had changed the house lock. She said she had found the gun packaged in the garage at Bathurst a few days previously. The garage door had been unlocked. He had been asking her about the Colt since August or September 2022 and she had consistently said she did not have it. In September he told her that he had a girlfriend, and then came to her garage to collect a number of boxes. 10. She had found the gun in her garage next to an old computer box. She had no idea how it came to be there, but suspected that the applicant had placed it there as part of a plan to set her up. She did not know why he would do that, however. 11. There are thus two versions of how the Colt disappeared and later reappeared. The applicant states that he left the Ginkin residence in January 2022 and moved to Oberon, but did not take his gun safe at the time because he wanted to finish settling in to Oberon and arranging his daughter's school, believing that his wife did not know where the keys were hidden. He moved the safe to Oberon in about March 2022 but did not inspect the contents at the time, as he assumed that all his firearms were in it. 12. When he did clean up the safe, he discovered that the Colt was missing. He told police that he had made that discovery in August or September 2022, but in his statement he said it was in May 2022. He concluded that Christina must have found the keys and had taken the pistol, perhaps believing that she was entitled to do so as she had paid for it. He did not immediately report the loss because he was convinced that he would be able to persuade her to return it to him and so avoid the "dramas" that might otherwise ensue. In May 2023 he confronted her again, saying it was her "last chance" and then reported the loss to police as described in event report E 80484153. She had then packed up the pistol and thrown it over his back fence, where police later found it on 23 May 2023. 13. Christina's version of events was that she had never had access to the gun safe while it was kept at Gingkin but that in August or September 2022 he had begun asking her where the Colt was, while she had kept telling him that she did not know. Ultimately, a few days before 23 May 2023, she had found the gun packaged up in her garage at Bathurst next to an old computer box. The garage did not lock and there was easy access to it. She maintained that she did not know how the pistol had come to be there in her garage, but thought the applicant might have placed it there as part of a plan to set her up. 14. When she found it, she became frightened as she did not know what to do about it, but later repackaged it and threw it over the locked gate at the applicant's Oberon residence. 15. As Christina is neither a party to, nor a witness in, these proceedings and may be unaware of them, it would not be proper to seek to make findings of fact that might potentially be adverse to her interests. Further, her evidence has not been tested in cross-examination. It is not necessary, however, to choose between the two versions of events. The undisputed material facts are that the applicant left the Gingkin residence in January 2022 but left his gun safe there until March 2022, when he moved it to his Oberon residence without checking the contents at that time. In about August or September 2022, or perhaps as early as May 2022, he discovered that the Colt was missing but failed to report the loss to police until 19 May 2023, a delay of between 9 and 12 months. In his oral evidence he said the delay was closer to 5 or 6 months, but did not offer a satisfactory explanation of how that could have been so. 16. Section 37(1)(b) of the Act deals with lost or stolen firearms. It provides that the person in whose name a firearm is registered – must, if the firearm is supplied or lost by, or stolen from, that person, immediately notify a police officer of the supply, loss or theft of the firearm and provide the Commissioner, within 7 days after the firearm is supplied, lost or stolen, with particulars of the supply, loss or theft in accordance with the regulations. 1. In his internal review request dated 11 September 2023, the applicant wrote that "When I noticed the missing firearm, I immediately contacted the Bathurst Police, to report the missing firearm" (exhibit R1, annexure 9(a)). That was far from the truth and it is clear that the applicant's failure to report the loss of the Colt for 9 months seriously contravened s 37(1)(b) of the Firearms Act. 2. In addition, s 69 of the Act provides that a licensee "must, if there is any change in the licensee's or permit holder's place of residence, provide the Commissioner with the particulars of the change of address within 7 days after the change occurs". While the applicant notified his move to the Oberon address on 4 June 2020 (id., Annexure 4(i)), he did not inform the Commissioner of the change until 26 May 2021. Further, he continued to leave his firearms at his previous address in Gingkin where his ex-wife and child lived, although neither was licensed to possess firearms. He was thus unable to exercise continuous and responsible control over them, and indeed left them at that address without checking on them at all. Traffic record 1. The applicant's traffic record is poor, and begins in 1992, two years after he was first issued with a learner licence, his most recent infringement being a speeding violation in March 2022 followed by a fine default suspension on 5 May 2022. His record includes speeding, disobeying traffic lights, a mid-range PCA, unlawful U-turn, riding a motorcycle while unlicensed for more than two years, while riding a motorcycle not wearing a helmet and carrying an unauthorised pillion passenger, illegally driving in a bus lane and not complying with the conditions of his provisional license. 2. In cross-examination he said that his driver licence had been suspended "just once, when I was a kid", but in fact there had been 5 suspensions over a 30-year period. He said the PCA violation in 2001 was "An error on my part", but submitted that his other contraventions were not serious and that in any event his driving record was "not relevant" to the present application. Evaluation 1. The evidence therefore shows that, despite knowing that the Colt was missing and possibly stolen, for a substantial period of months, failed to inform police, thereby posing a potential threat to public safety. That constituted a clear potential risk, and not a technical or trivial one, to public safety and I find that it placed the applicant in breach of s 37(1)(b) of the Act. That contravention, as well as the failure to notify his change of address, which I find constituted a breach of s 69, demonstrates a disregard for his obligations as a firearms owner. The tribunal could not be satisfied that the applicant is a fit and proper person to hold a licence. Further, he took liberties with the truth of the matter, claiming that on realising that the pistol was missing, he "immediately contacted Bathurst Police Station", when in fact he waited between 9 and 12 months. 2. While the applicant did not face any charges in relation to the contraventions, that is not material. In merits review, it is the nature of the conduct that is to be considered, not only the fact of a charge, conviction or acquittal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 70; Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31. I find that his conduct in that regard warranted revocation of his licence pursuant to the discretionary power conferred by s 24(2)(b)(ii) of the Act. 3. His claim that his traffic record was not relevant in the context of firearms licensing was unfounded, as appears from the recent case of O'Brien v Commissioner of Police [2022] NSWCATAD 259, in which an applicant had a long, sustained history of traffic infringements since 1994. In Montgomery SM's view, his history demonstrated "a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety". In that case a firearms licence application was refused by the tribunal on the basis of the applicant's poor traffic record. 4. Similarly, in Himo v Commissioner of Police [2021] NSWCATAD 321, [102], Naida Isenberg SM explained that – The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Applicant's very poor history of traffic offences shows a disregard for another regulatory scheme which aims, like the firearms legislation, at ensuring public safety…. A disregard for a regulatory scheme aimed at ensuring public safety is a very relevant consideration in determining whether or it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements and that his last recorded offences were as recent as May and July 2020, I cannot be satisfied that similar conduct will not be repeated, given his long-standing disregard for the traffic regulatory scheme. Similarly, I cannot be satisfied that he may not disregard aspects of the firearms regulatory scheme. 1. Again, in Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, [81], after reviewing the applicant's traffic history, concluded: The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. 1. The applicant is a man aged 50 who has no non-traffic convictions apart from a mid-range PCA in 2001 and has no links with outlaw motorcycle gangs (OMCG) or other criminal elements. He has been licensed for category ABH firearms since 1999 and held a large calibre pistol permit commencing on 10 December 2011. Until the events with which this case is concerned, he had not come under adverse notice for any breaches of firearms legislation or any instances of careless or dangerous conduct. He has no record of violence or threatening violence, no history of illegal drug-taking or abuse of alcohol and no record of mental health problems. 2. His conduct in relation to the missing pistol involved serious contraventions of a licensee's obligations regarding safe storage and the obligation to report missing firearms and address changes. He left his gun safe and contents at his previous safe storage address until March 2022 without checking on them at all. That meant that he was entirely unaware of exactly when the Colt was taken, who had access to the safe and if other persons had illegally used or accessed his firearms. Not every safe storage breach will warrant licence revocation – there must be "something more" (Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91, [32]). Leaving his gun safe and keys in that manner is an aggravating factor that adds "something more" The Colt was eventually located, but in circumstances that in some respects remain unclear. 3. Despite being aware that his pistol was unaccounted for and possibly stolen, for a substantial period of time, he failed to alert police, causing a potential danger to public safety by allowing a large calibre pistol to be missing for nearly 9 months, apparently because he thought his ex-wife had it and believed he could persuade her to return it to him. Nevertheless, he had a legal obligation to report the apparent loss. 4. Besides amounting to a potential risk to the public safety, his conduct constituted a disregard of his legislative obligations as a firearms owner. His traffic record serves to reinforce this picture of disregard for statutory schemes aimed at preserving public safety. His repeated fines and licence suspensions over a 30-year period suggest a reluctance to learn from his mistakes. There is no character evidence other than some reported comments by his ex-wife Christina, some of which are favourable but others less so. 5. Section 11(3)(a) requires the Commissioner (and on review this tribunal) to form a positive state of satisfaction that "the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace" (EMB v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 247, [45]). The evidence now before the tribunal does not warrant such a positive finding and leads to the conclusion that he is not at present a fit and proper person to hold a firearms licence or permit. I so find. Public interest 1. The other ground on which the respondent relies is that it would be contrary to the public interest for the applicant to continue to hold a licence or permit. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to 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. 2. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 3. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration. 4. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [64]–[66]. 5. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32] (Webb), 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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. 6. The reasons set out above in relation to fitness and propriety also apply in connexion with the public interest. It cannot be in the interests of the public for a person who is not fit and proper to possess firearms without danger to public safety or to the peace to hold a firearms licence, not least a person who has committed serious contraventions of the safe storage requirements and especially the obligation to notify police when a firearm is stolen or missing. The risks involved are not "fanciful or theoretical", as understood in Webb. 7. The applicant asks for "a second chance", but his transgressions are too recent and too little time has elapsed without his coming under adverse notice for the tribunal to take a different view. I therefore find that it would not at present be in the public interest for the applicant to continue to hold a licence or permit. The decision under review must be affirmed. Order 1. Decision under review 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: 11 March 2024