Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Szann v Commissioner of Police, NSW Police Force [2011] NSWADT 5 Hearing dates: 25 October 2010 Decision date: 14 January 2011 Before: R Wilson, Judicial Member Decision: 1. The decision under review is set aside. 2. The applicant is granted the licence sought by his application dated 27 April 2010 which was received by the respondent on 29 April 2010. Catchwords: Revocation of Category AB Firearms Licence by reason of conviction. Application of discretionary grounds with respect to re-issue of the licence. Legislation Cited: Firearms Act 1996 Category: Principal judgment Parties: Ted Szann (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: T Szann (Applicant - in person) Senior Sergeant J Tillott (Respondent) File Number(s): 103184 REASONS FOR DECISION 1The applicant has brought these proceedings by way of review of an adverse decision in relation to his application for a licence under the Firearms Act 1996. Initially the applicant held a licence which was current to 22 April 2014 however it was revoked on 11 November 2009 following the applicant's conviction for possession of an unregistered firearm in October 2009. The applicant did not seek to review this revocation, but on 29 April 2010 he applied for the issue of a fresh licence. This was refused initially and then upon internal review, on 12 July 2010. By the time of the internal review the applicant had contested his conviction on appeal to the District Court of New South Wales. On 8 December 2009 the District Court discharged the applicant without proceeding to a conviction. The consequence of the District Court determination was that the decision on internal review became discretionary, the mandatory (refusal) provisions of the Act no longer having any application. This is also the position adopted by the parties in the Tribunal and they have formulated their arguments accordingly. 2In the Tribunal the respondent relied upon two separate incidents in support of the decision below to refuse the licence application although, as will appear, these incidents are related to some degree, particularly if the applicant's evidence is accepted. These two incidents are as follows. 3The first incident occurred on 28 August 2009. On that day Sheriff Officer Fraser attended the applicant's home in Newport, NSW in order to serve an eviction notice upon the applicant. He spoke with the applicant in the courtyard of the home and served the notice. The officer, at that time, noticed a rifle lying on a bench seat in the courtyard. He became concerned for his safety and therefore did not say anything to the applicant about the rifle. After serving the notice Officer Fraser left the premises without further incident. The officer's statement is exhibit R3 and he gave oral evidence at the hearing. He described the rifle as a "large calibre rifle" and estimated the bore size as being that of either a .308 or .303 calibre rifle. He said that it was not of a .22 bore and that it was not an air rifle. After leaving the premises the officer reported the matter to the police who subsequently attended upon the applicant on 1 September 2009. Officer Fraser's evidence is considered in more detail below. 4The second incident occurred on 1 September 2009 when Constable Millar attended at the applicant's premises. Constable Millar asked the applicant whether he owned any guns and the applicant replied that he did not. An inspection of the premises followed during which the applicant showed the officer a gun safe under the stairs and then stated that he had an air rifle in a storage area downstairs. Constable Millar located the firearm which he confirmed was in fact an air rifle with a .22 bore. This firearm was unregistered and this gave rise to the applicant being charged with possession of an unregistered firearm. The applicant explained that this weapon was in the storage area rather than in the gun safe as he was in the course of moving house by reason of his impending eviction from the premises. 5These two incidents are related if the Tribunal is able to find that the firearm observed by the Sheriff's Officer was the same firearm located by Constable Millar. Otherwise they are independent incidents. Officer Fraser's evidence demonstrates his familiarity with firearms by reason of which he identified the firearm he saw on 28 August 2009 as being a large bore rifle capable of firing explosive bullets and therefore not an air rifle. His evidence in this regard is credible by reason of his experience with firearms. The applicant however, gave evidence that the firearm Officer Fraser saw was the same one as the firearm located by Constable Millar. He said that on the day Officer Fraser came to his house he was in the course of moving the air rifle from the gun safe to a secure storage area downstairs and for one reason or another he was interrupted, perhaps by a telephone call. At that time a real estate agent was showing the property to clients and had requested that the gun safe be left open for viewing. Also, the applicant said that he was intending to take the air rifle, shortly afterwards, to other premises in the countryside where he intended to reside. It is to be recalled that at this time the applicant held a firearms licence and that the place where the firearm was observed by Officer Fraser clearly does not give rise to any suggestion that it was not being regularly stored in a secure location. The applicant said in evidence that the weapon observed by Officer Fraser was kept in the gun locker until the time that Constable Millar saw it in the downstairs area, this evidence not being disputed. Consequently, the respondent has not asserted in these proceedings that the applicant's possession of a large bore rifle, should Officer Fraser's evidence be accepted, involved any breach of the firearms legislation. The essence of the respondent's case is that it was the possession of the air rifle, given that it was not registered, which constituted the material breach under consideration. It was for this breach that the applicant was charged and initially convicted, albeit a discharge without conviction following in due course. It follows, of course, that if the applicant's evidence, that he had possession of the unregistered air rifle when Officer Fraser attended, is accepted this will establish a breach of the legislation at that point in time. 6With regard to the factual issue as to the type of firearm observed by Officer Fraser the evidence is equivocal. Both Officer Fraser and the applicant were credible witnesses and gave reliable evidence: the Officer because of his expertise and the applicant because he obviously knew the type of firearm that he had in his possession at the time. In order to accept the Officer's evidence it would be necessary to reach a finding that the applicant gave untruthful evidence in this regard, and there is nothing in the materials before the Tribunal upon which the Tribunal could properly determine that the applicant was being untruthful. Much of his evidence on peripheral matters, such as moving house, is supported by independent evidence and the Tribunal found him to be a credible witness. One point requires specific mention. The applicant said that he was unaware that an air rifle required registration and the respondent submits that this in an untruthful statement by the applicant, given his long association with the registration system. However, the Tribunal accepts the applicant's evidence on this point, the reason being that the applicant, together with his son, had access to a number of registered firearms and there is no doubt that, if the applicant thought the air rifle required registration he would have made appropriate arrangements to achieve this with no difficulty. Consequently, the Tribunal is unable to reach a factual determination one way or the other without being speculative to some degree, and this would not be a proper course. 7However, in the final analysis, this factual dispute does not really require resolution for the matter at hand. If the firearm was not an air rifle, then no separate breach of the legislation is involved. If it was the same air rifle, then this will establish the same breach the respondent relies upon, but at an earlier point in time. Nothing is added to the case by resolving this dispute, particularly, as the respondent submits, both types of guns are firearms for the purposes of the legislation. 8As noted earlier, the respondent relies essentially upon the applicant's possession of the unregistered air rifle. Also, as the respondent correctly submits, the material consideration here focuses on applicant's possession of the firearm rather than upon the eventual outcome in the District Court. Various considerations of course may come into play in relation to penalties imposed and a determination to discharge a defendant without proceeding to conviction. The better course in this matter is therefore to focus on the applicant's conduct rather than the final outcome and penalty in relation to the offence. 9It is true that the applicant's possession of an unregistered firearm and his storage of it in a location, albeit secured to some extent, other than the gun safe at his former premises, could support a finding that he was irresponsible in relation to his obligations under the legislation so that it would not be in the public interest to now grant him the firearms licence he seeks. To this should be added his lack of knowledge that air rifles require registration. The respondent submits that this evidence shows a continuing disregard and a cavalier attitude towards firearm regulation and safety. There is of course some force in these submissions. However, the applicant's long history of responsible association with firearms, without incident, persuades the Tribunal that the several conclusions pressed by the respondent ought not to be drawn. When the firearms legislation was introduced the applicant registered all the firearms that he had, and surrendered weapons that he was unable to keep (exhibit R1 tab 10) and he has conscientiously adhered to his obligations, save for the circumstances which are the subject of these proceedings. Despite these circumstances, the applicant's history suffices to persuade the Tribunal, as a matter of discretion, that he has a responsible attitude towards firearm regulation and that the licence he seeks ought to be granted, and the Tribunal so orders. 10The Tribunal notes for completeness that the respondent also relied upon an allegation that the respondent, at a material time, apparently drove his motor vehicle whilst intoxicated and so demonstrated a general tendency to not observe legal obligations. However, the evidence on this aspect was minimal and does not enable any findings of fact that are capable of substantiating the allegation. ********** 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: 25 January 2011