Cali v Commissioner of Police, NSW Police [2007] NSWADT 187

CITATION: Cali v Commissioner of Police, NSW Police [2007] NSWADT 187

DIVISION: General Division

APPLICANT PARTIES: Salvatore Cali RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 073038

HEARING DATES: 8 May 2007 and 15 June 2007

SUBMISSIONS CLOSED: 15 June 2007

DATE OF DECISION: 20 August 2007

BEFORE: Molony P - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Criminal Records Act 1991 Firearms Act 1996

Coates v Commissioner of Police, New South Wales Police Service [2001] NSWADT 56 CASES CITED: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Drake v Minister for Immigration and Ethnic Affairs (1979) 56 FLR 409 Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153

APPLICANT K Neville, solicitor REPRESENTATION: RESPONDENT W Pisani, solicitor

ORDERS: The decision of the Commissioner to refuse Mr Cali's application for a Category AB firearms licence is set aside and replaced with a decision that Mr Cali be issued with a Category AB firearms licence.

REASONS FOR DECISION 1 Salvatore Cali is a well respected family man who has operated his own mechanical repair business in Kenthurst for many years. He is highly regarded in the community, an active member of local service clubs, and a keen participant in charitable events. 2 Mr Cali has been a recreational shooter since he was 8 years old. Over the years he has held firearms licences in various categories, both personally and as the licence holder for his company, S A Cali Mechanical Repairs Pty Ltd (the company), which also held licences under the Security Industry Act, as did he. 3 Most recently the company was issued with a Category H firearms licence on 22 March 1998. That licence expired on 22 March 2003. 4 The Commissioner says that Mr Cali, personally, was issued with a Category H firearms licence on 29 January 1999 for business purposes, which expired on 22 March 2004. 5 Mr Cali also held a one shooter licence under firearms legislation before the introduction of the "toughs new gun laws" in the Firearms Act 1996. That licence was first issued to him on 4 November 1989. One shooter licences were abolished on 28 March 2000. 6 On 11 October 2005 Police attended at Mr Cali's business premises at 57 Kenthurst Road, Kenthurst in relation to expired firearms licences. Mr Cali told Police he was unaware that his licences had expired. He had not received any correspondence from the Firearms Registry about them expiring. He said he had changed his business address five years ago, but had notified the Firearms Registry of that change. Police seized three pistols and two shot guns, which Mr Cali fetched and willingly surrendered to them. He says they also took his expired licence. 7 Mr Cali was charged with two counts of possessing an unauthorised firearm and two counts of possessing an unauthorised pistol. A Local Court Magistrate convicted and fined Mr Cali for these offences, but Mr Cali appealed the severity of the penalties. On 15 November 2005 the District Court at Parramatta heard that appeal and, under s.10 of the Crimes (Sentencing Procedure) Act 1999, directed that the charges be dismissed without proceeding to conviction. 8 On 29 November 2005 Mr Cali lodged an application for a Category AB firearms licence citing as genuine reasons recreational hunting, vermin control and primary production. With that application he provided a certificate of firearms safety awareness showing he had very recently passed a firearms safety awareness course. 9 That application was deemed to be refused on 25 July 2006. 10 Mr Cali sought an internal review of that deemed refusal. On 28 November 2006 an Internal Review Officer confirmed the deemed refusal on the ground that issuing a licence to Mr Cali would not be in the public interest. In the reasons for that decision the Internal Review Officer found, among other things, that: the three pistols held under the company's business pistol licence under the old licencing regime "were never reregistered under the Firearms Act 1996." the company's Category H licence expired on 22 March 2003 despite being sent a reapplication notice on 28 December 2002. Mr Cali personal Category H licence expired on 22 March 2004 despite being sent a reapplication notice on 27 December 2003. Mr Cali's personal Category H licence required that Mr Cali undergo annual training, but the last Accreditation Approval Certificate provided to the Firearms Registry was provided on 15 September 1999. Mr Cali had never been authorised to possess or use Category A firearms. 11 The Internal Review Officer considered Mr Cali possession of two shotguns when he had never been licenced for them to be a "fundamental breach of the Act and its underlying principles." It reflected adversely in Mr Cali's understanding of his "responsibilities and limitations" as a licence holder. With respect to the lack of reapplications made by Mr Cali, the Internal Review Officer found that Mr Cali's statement that he did not receive reapplication notices ignored his responsibility to ensure that he remained authorised to possess and use firearms. 12 Mr Cali lodged an appeal against that decision with this Tribunal. Issues 13 The issue to be determined in this case is whether the issue of a Category AB licence to Mr Cali would be contrary to the public interest. Section 11(7) of the Firearms Act 1996 provides: "Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest." 14 There was no issue as to Mr Cali's character, or that he had a genuine reason for possessing a Category AB firearms licence. 15 Mr Pisani, who appeared for the Commissioner, conceded that Mr Cali's one shooter licence had authorised him to possess and use shotguns. Mr Cali's Evidence 16 Mr Cali said that he has held a firearms licence since childhood. It is his practice to renew all licences on receipt of renewal notices. He said he always renews licences for the longest period possible. He denied receiving any of the renewal notices referred to by the Internal Review Officer. 17 He said that his business address for the past five years has been 57 Kenthurst Road, Kenthurst. For the preceding 15 years it was 86 Kenthurst Road (directly opposite). Mr Cali arranged for his mail to be redirected, and says that the local postman well knows where his business is located. He said he advised the Firearms Registry of that change of address. Mr Cali said his home address has been the same of 30 years 18 Mr Cali said that when he applied for his pistol licence he received a licence authorising him to hold category AB and H firearms, which he understood applied to all his firearms. 19 He said when the Police relieved him of his firearms on 11 October 2005 they also relieved him of that licence. He does not have a copy. The weapons were at his home address, but the police attended and he surrendered the firearms at his work address. 20 Mr Cali said that when he was interviewed by Police on 11 October 2005 they asked him if his address was 2 Tinglewood Place, West Pennant Hills. This led him to suspect that the Firearms Registry has the wrong address for him. 21 When asked by Mr Pisani if he acknowledged that his shooters licence for the shotguns had expired, he said it was a ten year licence and would not have expired until 2004 or 2005. 22 Mr Cali gave evidence on 8 May 2007. After hearing his evidence, and submissions from both parties, I adjourned the hearing to enable additional documentary evidence to be filed with respect to issues that had arisen in the course of the hearing. From the Commissioner's perspective, these were copies of records and correspondence held by the Firearms Registry relating to activities concerning Mr Cali's licences. From Mr Cali's point of view I was looking for any documentation he had which verified his evidence to me that the licence seized by Police in October 2005 was a Category ABH licence. The Documents 23 An examination of the records filed by the Commissioner from the Firearms Registry shows, relevantly, that: On 21 October 1997 the Firearms Registry wrote to Mr Cali, at home, referring to an application for an individual firearms licence and advising that: "Upon reading the application it appears that you wish to renew your current business pistol licence. Therefore a Business Application is enclosed for you to complete and return to us." On 31 October 1997, according to the Integrated Licensing Systems (ILS) records, S A Cali Mechanical Repairs Pty Ltd applied for a Category A firearms licence, which application lapsed, with no refund paid. An examination of the actual application, however, shows that both Category A and H business licences were sought. It is not clear why the application lapsed. On 29 June 1998 Mr Cali applied for an individual Category A licence specifying that his genuine reason for requiring the licence was his business as a security guard under the new licencing regime. The application was accompanied by a letter from Mr Cali, referring to his October 1997 application and advising that an inquiry, made in March 1998, had revealed that no action had been taken on that application. The Firearms Registry, on 15 September 1998, wrote to Mr Cali at his home address advising that he should apply for a business firearms licence and that his application would be placed on hold. On 30 July 1998 Mr Cali applied for Category H licence on the basis of his security work and as the holder of a current security licence. The category H licence, the Commissioner says issued on 29 January 1999, presumably relates to this application. There are no records from the Firearms Registry whatsoever relating to this licence which expired on 22 March 2004. This is the licence which Mr Cali says was a Category A, B and H licence, and was surrendered to Police in October 2004. The documents produced by the Firearms Registry contain no copies of any correspondence between the Registry and Mr Cali, or vice versa, since June 1998. There are no copy reapplication notices or other records. 24 The documents filed by Mr Cali were full and complete up to January 1999. There are no records from then on. They show that Mr Cali was regularly attending to meeting his licence requirement until then, his pistols were registered, he was providing regular Accreditation Approval Certificates, and renewing his licenses as required. There is a copy of the authority and conditions of a Category H licence issued to Mr Cali for the genuine reason of "security guard" on 29 January 2001 which was due to expire on 23 March 2004. Consideration 25 Since I heard this matter Judicial member Higgins has published her decision in Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153 in which she considered the application of the Criminal Records Act 1991 with respect to spent convictions to licencing decisions under the Firearms Act 1996. The order made by the District Court with respect to the criminal charges against Mr Cali are gave rise to a spent conviction. Section 8(2) of the Criminal Records Act 1991 provides: "(2) A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made." 26 The issue of whether Mr Cali's conviction was spent and the consequences of it being so, were not agitated before me. In Oliver Judicial Member Higgins considered the impact of a conviction being spent on whether the matters giving rise to it could be taken into account when considering whether to refuse a firearms licence application as being contrary to the public interest. She concluded at [33]: "In my opinion, for the purposes of this application it is unnecessary to form a view on the proper construction of s.12(a) of the Criminal Records Act and its application to s.11(7) of the Firearms Act as for the reasons set out below, even if the conduct the subject of the applicant's spent conviction is taken into account, I have found that the decision of the respondent is not the correct and preferred decision." 27 Because I too have concluded that the Commissioners' decision, in Mr Cali's case, is not the correct and preferred one, I have not considered the spent conviction issue, or sought submissions on it. 28 An examination of the various applications made by Mr Cali which are in evidence reveals no application for a Category B licence. He made at least two applications for Category A licences, on 31 October 1997 and 29 June 1998. The first application lapsed for no apparent reason, without the Firearms Registry giving notice to him. He discovered the application had not been process when he made inquiries of the Registry. The second application was made on a business reasons basis, and he was advised that a business application was required. 29 This was followed by him making a business licence on 30 July 1998 for a Category H, but not a Category A, licence. According to the Internal Review Officer, Mr Cali's company held a Category H business licence issued on 22 March 1998 which expired on 22 March 2003. There is no copy of that licence in the records. It can be seen that the dates of the application for that notice and the dates of the business licence's issue do not correlate. 30 The Internal Review Officer found that Mr Cali was the holder of a Category H individual licence issued on 29 January 1999 which expired on 22 March 2004. There is no application for that licence, no correspondence relating to it, and no record of it in the documents produced from the Firearms Registry. The only acknowledgement of its existence from the Commissioner's viewpoint is the Internal Review Officer's reference to it. Mr Cali has produced a copy of the condition and authority attached to the Category H licence. 31 Mr Cali's evidence is that this was a Category AB and H licence. He does not have it because, he says, it was taken by the Police when his firearms were seized in October 2004. 32 There is no evidence that Mr Cali, since 1999, has been sent a renewal notice for any firearms licence. Mr Cali's evidence is that he never received such a notice. If he had, he had systems in place to ensure he would have responded to it. His earlier regular renewal of licences, as documented in both his own documents and those produced from the Firearms Registry, shows that under the previous licencing regime he regularly renewed and complied with licencing requirements. 33 On the evidence before me I am at a loss to explain how the Internal Review Officer made many of the findings of fact adverse to Mr Cali. Despite a careful examination of the documents from the Firearms Registry I can find no evidence relating to the actual issuing of licences to Mr Cali in 1998 and 1999, or their terms or conditions. The only evidence I have in respect to those licences are the assertions contained in the Internal Review Officer's reasons for decisions, which are unsubstantiated by the Firearms Registry records, and Mr Cali's evidence in relation to them. The Internal Review Officer made reference to renewal notices sent to Mr Cali in relation to his firearms licences: as with the licences themselves there is no evidence in the documents from the Firearms Registry that these were ever sent to Mr Cali. He denies receiving them. 34 The Tribunal's role in reviewing the Commissioner's decision is to make the correct and preferable decision having regard to the material before it and any applicable law: s.63 Administrative Decision Tribunal Act 1997. It is central to the Tribunal's function that its decisions are made on the basis of the material before the Tribunal, rather than on the material before the initial decision maker or Internal Review Officer: Drake v Minister for Immigration and Ethnic Affairs (1979) 56 FLR 409 at 419, per Bowen CJ and Deane J. The material will not necessarily be the same. The Commissioner is required by s.58(1)(b) to lodge with the Tribunal a copy of every document or part of a document that is in his possession or control that he considers to be relevant to the determination by the Tribunal. All the documents upon which the Internal Review Officer based his findings of fact are relevant documents. In this case, because those records were not lodged with the Tribunal, I adjourned the hearing to enable them to be produced. They have not been produced. 35 On the basis of the material before me I am unable to agree with any of the findings made by the Internal Review Officer set out above. The absence of any records relating to the issue of firearms licences since June 1998, in the documents produced from the Firearms Registry, leaves me with no confidence in the correctness of assertions as to the licences made by the Internal Review Officer. This is especially so in the light of Mr Cali's evidence to the contrary. 36 Mr Cali has provided a number of references which I have read with care, which paint a picture of him as an honest and upright member of his community. This is entirely consistent with his presentation when giving evidence. I have no reason to disbelieve his evidence. His evidence is therefore the only reliable evidence I have in respect to his licence history since June 1998. 37 There is no evidence as to whether or not Mr Cali registered his pistols under the Firearms Act 1996. The fact that there are no registration records produced by the Firearms Registry does not persuade me that Mr Cali failed to register his pistols. The records produced by the Firearms Registry are so parlous that I am not prepared to draw adverse conclusions based on them alone. 38 As a result I am satisfied that: Mr Cali was previously authorised to possess and use shotguns under the one shooter licence issued to him under the previous licencing regime (as was conceded by Mr Pisani). Mr Cali advised the Firearm Registry of his change of business address. Mr Cali was the holder of a Category H firearms licence which expired on 23 April 2004. Mr Cali was also says he was the holder of a Category A and B licence which he concedes expired at some time prior to October 2005. There is no evidence to the contrary. Mr Cali received no renewal notices with respect to his firearms licences since 1998. There is no evidence as to whether or not Mr Cali registered his pistols under the Firearms Act 1996. Police seized Mr Cali's firearms and firearms licences in October 2005 because his firearms licences had expired. Mr Cali had systems in place to ensure the licence renewal notices when received were properly dealt with and licences were renewed. Mr Cali was charged with two counts of possessing an unauthorised firearm and two counts of possessing an unauthorised pistol. On 15 November 2005 the District Court at Parramatta directed that the charges be dismissed without proceeding to conviction. 39 Against those findings of fact it necessary to determine whether or not the issue of a Category AB firearms licence to Mr Cali would be "contrary" to the public interest. The public interest is an '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": see Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. It is to be exercised having regard to the objects of the relevant legislation notably the improvement of public safety and that "firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety:" s.3. 40 Mr Cali's good character is not in issue. All of the evidence points to him being a responsible and safe user of firearms, and to him exercising responsible and continuous control over his firearms: Coates v Commissioner of Police, New South Wales Police Service [2001] NSWADT 56 at 33- 34. There is no suggestion that his firearms have not been stored in suitable facilities. He now concedes that he did not renew his licences and remained in possession of his firearms after his licences had expired. His explanation for this is that he did not receive renewal notices advising him that the licences were about to expire. He did not realise they had expired. He cooperated with the Police who attended to seize his firearms. 41 Mr Cali can be legitimately criticised for not realizing his firearms licences had expired and for not taking action to renew them. The fact that he had not received renewal notices goes a long way towards explaining this failure. The evidence points to him having regularly renewed his earlier licences when he received renewal notices. That he did not receive the renewal notices, and therefore did not realise his licences had expired, is understandable and explains his omission. 42 That omission, in the circumstances, does not cause me to hold any concerns for the public safety were Mr Cali now to be granted a category AB firearms licence. He is a man of good character and substantial repute. All the evidence points to him complying with the safety and storage requirements of the Act. I am satisfied that he has, in the past, complied with all licensing requirements, and that his failure to renew his firearms licences was an understandable omission in the circumstances. In my view Mr Cali understands his responsibilities if granted a firearms licence. I do not agree that the public interest requires that his application for a Category AB firearms licence be refused. 43 As a consequence I propose to set aside the decision and replace it with a decision that Mr Cali be issued with a Category AB firearms licence.