Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cramp v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 133 Hearing dates: 7 May 2020 Date of orders: 19 May 2020 Decision date: 19 May 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof GD Walker, Senior Member Decision: Decision under review affirmed. Catchwords: LICENSING – firearms – refusal of dealer licence – fit and proper person – public interest – domestic circumstances - person primarily responsible for management of business. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1986 (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; Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657; Commissioner of Police v Toleafoa [1999] NSWADTAP 9; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Director General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65; Director of Public Prosecutions v Smith [1999] 1 VR 63; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70; Foley v Commissioner of Police, New South Wales Police [2005] NSWADT 12; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 95 CLR 127; Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31; Livet v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 104; Mielczarek v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 5; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; O'Sullivan v Farrer (1989) 168 CLR 210; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149. Category: Principal judgment Parties: Marilyn Cramp (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/00192893 reasons for decision 1. The applicant Mrs Marilyn Cramp applied to this tribunal on 21 June 2019 for review of a decision by the respondent to refuse her application for a firearms dealer licence which she had lodged on 7 July 2017. The refusal was based on ss 11(3)(a), 11(7) and 17B(b) of the Firearms Act 1996 (the Act). The decision was affirmed following an internal review on 28 May 2019. 2. The applicant had held a number of licences, permits and authorities under the Firearms Act since 1998. She had been granted eight licences, permits and authorities during that period and had received seven revocations, suspensions or refusals. She had been charged with a number of firearms offences on one occasion, all charges being dismissed following a hearing in the Local Court. 3. The applicant's husband, Mr John Cramp, and her late son David Cramp (deceased in 2019 from natural causes) also held licences or permits on a personal basis and in respect of firearms dealership businesses conducted at the same Faulconbridge address as their residence. A number of interactions with the respondent took place in relation to those licences and permits. Some aspects were relevant to the present application. Applicable legislation 1. Section 11 of the Act sets out the general restrictions on the issuance of firearms licences: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made. (2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence). (3) A licence must not be issued unless— (a) 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, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. (4) Without limiting the generality of subsection (3) (a), 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— (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. (5) A licence must not be issued to a person who— (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or (d) is subject to one of the following in relation to an offence prescribed by the regulations— (i) a good behaviour bond, whether entered into in New South Wales or elsewhere, (ii) a community correction order imposed in New South Wales, (iii) a conditional release order imposed in New South Wales, or (e) is subject to a firearms prohibition order, or (f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000. (5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that— (a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest. (5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A). (6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person. (7) 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. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence. 1. Section 17B(b) of the Act provides that the Commissioner must not issue a firearms dealer licence unless satisfied "that the applicant is to be the person primarily responsible for the management of the business to be carried on under the authority of the licence". 2. In similar vein, s 44(1) of the Act provides that an applicant for a firearms dealer licence "must give the name and address of each person who is a close associate of the applicant and particulars of the nature of each such person's association with the applicant". 3. The meaning of "close associate" is further explained in s 4B: 4B Meaning of "close associate" of firearms dealer (1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a firearms dealer licence if the person— (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or licence holder, and by virtue of that interest or power is or will be able to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or licence holder. (2) In this section— relevant financial interest, in relation to a business, means— (a) any interest in the capital or assets of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position, in relation to a business, means a position whose holder participates in the management of the business (whether in the capacity of a director, manager or secretary or in any other capacity). relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others— (a) to participate in any managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 1. The issue in this case is whether the correct and preferable decision is to refuse the applicant a firearms dealer licence on the ground that she is not a fit and proper person to hold such a licence or that it is not in the public interest for her to do so, or is not to be the person primarily responsible for the management of the business, or any or all of those grounds. 2. The application was heard at Sydney on 7 May 2020, partly by audio-visual link and partly by simultaneous telephone link. The evidence 1. The applicant adduced no evidence, although she had been directed to do so by Pearson PM at a directions hearing on 19 November 2019. Instead, she relied on the substantial documentary evidence tendered by the respondent and on the cross-examination of the respondent's witnesses. The applicant on 6 January 2020 did file a document headed "Evidence and submissions of the applicant" (part exhibit A1), but as it consists mainly of comment, it is summarized under the heading of submissions. To the extent that it contains representations of fact, they are taken into account in these reasons, subject to the caveat that they are unsworn material that has not been tested in cross-examination. 2. The respondent relied on the s 58 documents and other documentary material, including a flash drive recording a police operation on 10 September 2015 to collect firearms at the applicant's business premises, and also called three police witnesses, as follows. Det.S/Const. Dianne Erhardt 1. The witness adopted her statement with annexures dated 3 January 2020 (part exhibit R1) in which she stated that she had obtained the archive material from police archives in relation to her previous dealings with John and Marilyn Cramp. From September 2003 until July 2004, she was licensing officer at the Blue Mountains Local Area Command. Among her responsibilities was to conduct an audit of all registered firearms in the LAC, including the approximately 400 firearms in the possession of Mr and Mrs Cramp at their premises in Faulconbridge. 2. Her recollection was that the businesses owned and operated by them at that address included names such as SPC Statewide Protective Services. Their businesses provided security service, cash in transit services, security guards and a firearms dealership. 3. The first time she spoke with Marilyn Cramp was when she telephoned to arrange an inspection of the firearms pursuant to the state-wide firearms audit being conducted on all registered owners. She recalled Mrs Cramp being rude and sarcastic because she was unaware, at that time, of how many firearms they had in their possession. 4. From that and subsequent interactions, she formed the impression that Marilyn Cramp was an integral part of the businesses being run from those premises, including a firearms dealership and the security businesses. Her demeanour was generally quite bullying and sarcastic. On 2 November 2004, following a security industry audit, the witness attended those premises with a number of other police in order to audit and possibly seize 396 firearms that later became part of the charges against John Cramp (charge H24423181). Marilyn Cramp was present and involved. At the time of seizing the firearms, video recordings were made of the entire search and seizure process. 5. Marilyn Cramp was present at the commencement of the search and seizure while in the business office with other staff, including her daughter Rebecca Cramp. While police were conducting the search and seizure, Marilyn Cramp indicated where her son David Cramp's firearms were stored. There were also discussions with her at that time about "safe storage" of firearms, and she and her son David began separating those firearms from the others. 6. The witness was given access to a statement by Mr Simon Easter [a security guard employed by the business] dated 2 February 2000 stating inter alia that "I went to the kitchen to get my gun from Mrs Cramp which is normal practice". The witness also referred to statements by two persons who had dealings with the Cramp business stating that they dealt with both John and Marilyn Cramp in those matters. 7. It was the witness's opinion from her previous dealings with John and Marilyn Cramp from mid-2004 until mid-2009 that neither of them is a fit and proper person to hold a firearms licence. They had both shown a flagrant disregard for the relevant firearms and security industry legislation. In her dealings with them, Marilyn Cramp was always an integral part of the businesses being run by her and John in relation to their security and firearms businesses. 8. In oral evidence at the hearing, the witness reiterated those points and noted that the fact sheet for charge H2442381 against John Cramp listed over 200 offences, mainly storage and unauthorized use contraventions (exhibit R1, pp 21 – 53). At the time, 28 firearms recorded as being in John Cramp's possession could not be accounted for. 9. In cross-examination, it was put to the witness that if there had still been any firearms missing at the time of the trial for the offences, Mr Cramp would have been convicted on that ground. The witness replied that there was no hearing, and that the charges were dealt with by the DPP at the Local Court and the District Court. She agreed that the internal review reasons did not list any arms as being missing and added that it could be that the police had found them. S/Const Tony Kustro 1. Next, the respondent called S/Const Tony Kustro, who adopted his statement dated 15 September 2016 (exhibit R1, pp 61 – 65) in which he said that for the previous five years he had performed the role of licensing officer attached to Blue Mountains LAC. He related that David Cramp was the firearms dealer licence holder for the Mid-Mountains Armoury, based at Faulconbridge. Marilyn Cramp, his mother, was an authorized employee of the business, with an associated ABG category firearms licence and a prohibited weapon collector licence. 2. On 7 August 2015 David Cramp was involved in a domestic violence incident where he was charged with common assault and a provisional domestic violence order was made against him. His personal firearms were consequently seized and his licence was suspended. He later made threats of self-harm but no attempt at self-harm occurred and he voluntarily admitted himself to the mental health unit of Blue Mountains District Memorial Hospital. 3. The statement then gives considerable detail about the collection of David Cramp's firearms and their evaluation by the police Forensic Ballistics Investigation Section. (This operation is recorded on the flash drive that forms part of exhibit R1, which is summarized below). The witness and other police attended at the Faulconbridge premises or 10 September 2015, where he served the applicant, as authorized employee of Blue Mountains Armoury, with a suspension notice for David Cramp. The team then proceeded to seize all firearms and firearm related items from the premises. A total of 222 separate items were seized. 4. Police concluded that the applicant Marilyn Cramp had committed 10 contraventions of the Act through failure to ensure that a number of firearms that were required to be temporarily or permanently made inoperative were in fact unable to be used. The witness had accordingly brought 10 charges against her. Three semi-automatic shotguns were the subject of charges brought against her (exhibit R1, p 170). 5. In oral evidence at the hearing the witness summarized the contents of the statement and added that he had been present when Sgt Linsley had removed the firearms from the safe so he could take them back to the police station in cases. He had not been present for the removal of every firearm, but was in charge of the operation. 6. The handguns were in a cabinet of the kind used by architects to hold plans, the guns being placed in a series of drawers. He did not recall which ones had trigger locks. 7. In cross-examination the witness said there were several containers in the storage room. John and Marilyn Cramp were both there and the police videoed the proceedings. John Cramp had been handling the firearms. Asked whether the shotguns were kept on wall mounts, the witness said he did not recall. Nor did he recall whether they were in locked racks that had to be unlocked. 8. S/Const Kustro was then asked whether, before the seizure referred to, there had been any inspections carried out in relation to the drawers in the cabinet. He agreed that he had carried out an inspection, in company with a police inspector, and that there had been no breaches observed. It was, however, a rather cursory search because it related to the applicant's security licence, not to firearms. 9. The witness also agreed that the drawers showed no contraventions of the legislation. He could not recall whether John Cramp had removed trigger locks before handing the firearms to Sgt Linsley. In the course of the process the applicant had referred to the books of the business. A few inconsistencies in relation to firearm numbers had been observed, but nothing else. Sgt Peter Linsley 1. This witness adopted his statement dated 9 June 2016 (exhibit R1, pp 78 - 84) in which he related how on 10 September 2016 when he was given the task of clearing and making safe all firearms found at the applicant's Faulconbridge premises before their being handed to other police officers for identification and verification. 2. On arriving at the premises he was introduced to both Marilyn Cramp and John Cramp, who provided him with access to the safe storage area where the firearms currently registered to that address were located. Having been given access to the firearms stored at that location, he began making safe all firearms before they were handled by other police. The statement then detailed the firearms collected in that process. 3. In oral examination the witness said the storage arrangements were in a large room. He had collected all the guns, but did not make any alterations to them, simply making them safe. He did not recall individual firearms because of the numbers involved, but most were long arms. He passed them on to another officer for packaging and for securing as exhibits to be used in evidence. 4. Asked whether the weapons were locked, the witness said he could not recall. Some of them were removed from wall racks and handed to him by John Cramp, but he could not remember whether or not they were locked. 5. Mr Kable explained that the applicant would not be adducing any other evidence, but Mrs Cramp was available for cross-examination. He said the applicant had stated her reasons for seeking a dealer licence and it was for the respondent to raise any objections. Her application states that she is a fit and proper person to hold a firearms dealer licence. The respondent had objected, but there was no other evidence that the applicant needed to lodge. All the allegations had come from the respondent. Applicant's submissions 1. The applicant adopted the written submissions filed on 6 January 2020 in which she explained that her husband had previously been a licensed firearms dealer, from the 1980s until 2004, when his licence was suspended and ultimately revoked. The applicant was an authority under her husband's dealer licence from 1998 until 2004. 2. The applicant's son, the late David Cramp, became a licensed firearms dealer in 2012, and the applicant was an authority on that licence until 2016. In 2014 he was suspended from operating the dealer's licence and the applicant received authority from the Commissioner to continue operating the dealer's licence. At all times David and the applicant resided with John Cramp, who was subject to criminal proceedings, and ultimately appeals, from 2004 until 2009. David Cramp died of natural causes approximately six months ago. 3. John Cramp, her husband, has applied for a firearms licence, it being more than 10 years since his licence was revoked as a result of an adverse finding against him. When the applicant's family operated a dealer licence, they undertook repair work, identification transfers (around 100 a year), and were asked by relevant local individuals and police to retrieve firearms and hold them in storage, either for deceased estates, suspended licence holders or under police assistance. 4. The applicant seeks to obtain a firearms dealer licence, and although she has never held one in the past, she was appointed as an employee under the dealer's licence of David Cramp, and upon his failing suitably to hold such a licence, she was made the person responsible for the dealer licence from 2014 until it was suspended in 2016. She has, however, held a personal firearms licence since 1998 and has also had collector added to the reasons for her licence. The applicant was charged with a number of offences that were heard in Penrith Local Court before Hiatt LCM in 2018, in a two-day hearing. Having heard all the evidence, the court dismissed all charges on the basis that the prosecution had failed to prove them, not on any technical grounds, but after concluding on all the evidence that the offences were not proved. 5. Mrs Cramp has never had any charges proved against her. She has acted as a firearms dealer in the past, and while it might be inferred that she had certain knowledge, that inference had never been tested and it was the applicant's case that little weight should be afforded to hearsay or circumstantial evidence or perceived knowledge, which the statement of reasons relating to the rejection has done. 6. There are many references to John Cramp being a "close associate", the submissions continued. Under the terms of the Firearms Act, that might technically be true, and the Firearms Registry had acknowledged his association with the applicant and their son from as early as the initial charges in 2004. It had allowed the transfer of all John's firearms to the applicant under a collector licence and ultimately allowed David to gain a firearms dealer licence with the applicant registered as employee thereon. 7. For the Commissioner now to raise issues of close association raised a type of estoppel by acquiescence, whereby the same circumstances existed when David applied for a dealer licence and it was granted. The Commissioner could have refused that application and Marilyn's employee permit on the basis of their being close associates of John. For the Commissioner to claim that the applicant failed to indicate the close association of her husband on the application for a dealer licence did not of itself amount to a matter of sufficient gravity, given the applicant's good record, to preclude her from having a dealer licence and prohibited weapons permits; see Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADTAP 16, [26] where the Appeal Panel doubted whether a single instance of a misleading statement on an application form was a sufficient basis for "the very serious finding that a person is unfit to be granted a licence". 8. Similarly, in Mielczarek v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 5, in which the applicant for a tattooist licence failed to disclose her husband, who was a member of an OMCG at the time of the application but the tribunal nevertheless ruled in her favour. While John Cramp was unauthorized to hold a firearms licence when the applicant made the application, he is now not barred from making such an application. The public interest test was expounded in both of the above cases, and the applicant's position was that it would not put the public at risk if Mrs Cramp were to be issued with a firearms dealer licence. Consideration 1. This tribunal has jurisdiction to entertain this application by reason of s 75(1)(a) of the Firearms Act, which creates a power to review a decision by the Commissioner refusing a licence or permit. 2. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 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)(c) states that a licence must not be issued unless the Commissioner is satisfied that the Act's storage and safety requirements are capable of being met by the applicant. Section 11(4)(a) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances. 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 the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. 5. The tribunal is to take into account matters indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] – [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60]. Fit and proper person 1. The applicant's licence application was refused both on the ground that she was not a fit and proper person to hold it and that her doing so would be contrary to the public interest, or also that it has not been shown the applicant would be the person primarily responsible for managing the business. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But there purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion. 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. 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]. 2. The applicant has a lengthy history of involvement with the current firearms legislation starting with the issuance of her ABH licence on 14 April 1998. That history is set out in detail in the reasons for the internal review decision dated 28 May 2019. Some aspects of that history are worthy of note. 3. On the one hand, there have been a number of instances in which the applicant has been granted licences, permits and other authorities under the legislation, including: * 14 April 1998: category ABH licence issued. * 1 March 1998 to June 2003: authorized employee. * 11 April 2008: category AB licence issued. * 30 June 2012: dealer licence listing the applicant as a close associate issued to David Cramp. * 20 May 2010: category G collector permit issued. * 5 August 2011: category G collector permit widened. * 25 August 2012: employee authority issued. * 15 April 2013: category G firearms collector licence to collect category ABH firearms granted. * c 8 April 2014: applicant authorized to operate David Cramp's firearms dealership business. 1. On the other hand, the record shows a number of instances of revocations, suspensions or refusals by the Commissioner, including: * 15 February 2005: application for a firearms dealer licence refused because of the applicant's involvement in her husband's firearms dealership business and concerns that he would continue to have an influence over firearms dealership at her address. * 26 November 2005: category H licence revoked for failure to complete training requirements, revocation set aside 21 December 2005 when requirements satisfied. * 13 May 2016: category ABG firearms licence and prohibited weapons collector permit suspended. * 23 May 2016: dealer employee authority cancelled. * 1 September 2017: personal category ABG licence and prohibited weapons collector permit revoked because of contraventions detected by police on 10 September 2015. * 23 January 2018: 10 charges of possession offences against the applicant dismissed after hearing in Penrith Local Court. * 28 May 2019: refusal of current application for dealer licence following internal review. 1. The evidence, including the testimony of D/Sgt Erhardt, identifies the applicant as having been the secretary and manager of John Cramp's personal security and firearms dealership businesses against which a significant number of breaches of firearms regulations were detected on 2 November 2004. At Penrith Local Court on 25 June 2009 Mr Cramp was found guilty on 19 of the 203 charges (exhibit R1, pp 146 – 147). 2. Among the 203 counts against John Cramp there were three incorporating involvement by the applicant: Nos 72, 73 and 110, exhibit R1, pp 34, 41. They were among the charges that were dismissed. 3. The evidence showed that the applicant had worked as secretary and manager in her husband's businesses for many years before and was thoroughly familiar with, and involved with, all aspects of those businesses. Mr Easter, a security guard employed by the business, stated that when he was commencing his shift, the invariable practice was that he would collect his gun from the applicant. It was clear that the applicant bore some responsibility for the storage and unauthorized use contraventions that were found to have been proved. 4. Further, initially the applicant did not disclose her husband as a "close associate" in her application for a dealer licence submitted on 11 November 2004. She nominated him only after prompting by the Firearms Registry (exhibit R1, pp 41-42). In the circumstances that is suggestive of an intent to mislead. 5. At the same time, those events took place over 15 years ago, and it is necessary to consider her subsequent conduct. In that regard, the respondent points out that on 8 April 2014, the applicant was given sole responsibility, as an employee with access, for operating and managing the firearms dealership operated by her son David Cramp, after concerns had been raised regarding his psychological well-being. 6. On 7 August 2015, David Cramp was involved in a domestic violence incident and was charged with common assault. A provisional domestic violence order was made naming him as defendant. As s 23 of the Firearms Act provides for the automatic suspension of a firearms licence on the making of an interim AVO, police on 10 September 2015 attended at the Faulconbridge premises for the purpose of seizing all firearms and firearm-related holdings due to the possibility of his gaining access to the dealership firearm holdings. 7. On that day police located a category D shotgun registered to the applicant's collector licence that had not been rendered permanently inoperable as required by s 20(a) the Firearms Act. Semi-automatic shotguns with a magazine capacity of more than 5 rounds are classified as category D, but the applicant had been under the impression that the tubular magazine held only 5 rounds, not 6, in which case it would have been category C and not requiring permanent inoperability. Mr Kable recalled that the Local Court magistrate had accepted that the transgression resulted from a bona fide mistake of fact. As the gun was held under a collector licence, it could not be fired in any event, and had never been loaded. Although the transcript of those proceedings is not before the tribunal, there is no reason to doubt that assertion. 8. There were also 7 category H firearms registered to the applicant's collector licence that had not been made temporarily inoperable as required. Although there was no dispute that the firearms were category H, at the hearing the evidence of S/Const Kustro and Sgt Linsley was not entirely clear on whether the shotguns were held in locked wall racks. If so, they might still not have satisfied the statutory requirements for primary inoperability such as a trigger lock, but the gravity of the contraventions might be viewed as somewhat reduced. 9. As a result of the seizure of the firearms belonging to David Cramp's firearms dealership on 10 September 2015, the applicant was charged with three counts of possessing an unauthorized prohibited firearm and seven counts of possessing an unauthorized pistol. Following a two-day hearing in Penrith Local Court, all charges were dismissed on 27 November 2018. 10. Also as a result of the 10 September 2015 seizure, David Cramp was charged with possessing a "prohibited weapon" (a silencer or suppressor, classified as a "miscellaneous article": Livet v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 144, [62]) without a permit, a clear violation of the Weapons Prohibition Act 1998. He was also charged with possessing an unauthorized pistol, a "pinlock" (pinfire) revolver. Although pinfire revolvers are not exempt under the legislation, they are in practice antiques as the type has, it seems, not been used in any quantity since the American Civil War and they have scarcely been manufactured for a century or more. The two offences arose in relation to David Cramp's personal licence, not the dealer licence. 11. Those charges were dismissed and Penrith Local Court on 23 January 2018 on mental health grounds. While all charges against the applicant arising from the 10 September 2015 seizure were later dismissed, the respondent correctly points out that an administrative tribunal in a licensing matter has an obligation to consider the whole of an applicant's conduct, not merely the judicial record. 12. It is thus relevant that all breaches were detected at the dealership business a time when the applicant had direct managerial involvement, being the only employee having access to the firearms, making it highly likely that at the time the police attended at her address, she was aware, or should have been aware, of the presence of the prohibited items. 13. Further, on 17 February 2017, the applicant was questioned by police and officers of the Security Licensing and Enforcement Directorate (SLED) as the master licence holder for the business Stonehaven Enterprises Pty Ltd, trading as SPC Statewide Protective Services. On that date she was issued with a caution in respect of contraventions of the Security Industry Act 1997 for failure to display her master licence on her vehicles and to keep a security incident register and sign-on security register. It was also reported that both the applicant and John Cramp were antagonistic towards both police and SLED officers. Nevertheless, her master security licence was not suspended or revoked. While the episode did not arise under firearms legislation, it could indicate an uncooperative attitude unconducive to proper compliance with the obligations of a firearms dealer. 14. The applicant is a woman aged 69 who has never had any convictions or findings of guilt recorded against her. She was partly responsible for the administrative failures that led to 19 counts of Firearms Act contraventions being recorded against her husband John Cramp. That, however, was 15 years ago and, as Mr Kable pointed out, the respondent subsequently issued her with licences, permits and authorities notwithstanding her part in those derelictions. The applicant submitted that by so doing the respondent raised a type of estoppel preventing him from deciding against the applicant on fitness and propriety grounds, but there is no legal basis for fettering the Commissioner's discretion in that way. Video recording of the 10 September 2015 collection and seizure 1. The respondent tendered a flash drive containing a complete video recording of the police operation on 10 September 2015 in which the full firearms stock of the Faulconbridge dealership business, together with David Cramp's personal firearms, were impounded as a result of his automatic licence suspension under s 23 occasioned by the issuance of an interim AVO against him (part exhibit R1). Technical factors prevented the video recording from being played at the hearing, but I subsequently viewed it. 2. The operation took all day and involved six or seven officers. The process took place in a co-operative, and indeed cordial, atmosphere, with Mrs Cramp making cups of tea for some of the officers. Comments and anecdotes about the finer points of firearm design, history and storage were exchanged on both sides. 3. The armoury was a substantial masonry building with a steel reinforced roof, security cameras and a multiplicity of other security devices (letter 7 July 2017, exhibit R1, p 128). Both Mr and Mrs Cramp assisted the police, with the applicant consulting the dealership's books and comparing the firearm numbers with the police officer (usually Sgt Linsley) collecting and examining each one before making it safe. In some instances she asked her husband to identify an individual firearm. Mrs Cramp explained her insistence on carefully checking the numbers because, she said, in a previous audit (presumably the 2004 inspection) some officers had inadvertently recorded the registration numbers of firearms instead of the manufacturer's firearm numbers, thereby leading to Mr Cramp's being charged with possessing unregistered firearms. 4. John Cramp thanked the officers for wearing gloves during the collection process, saying that on the previous occasion the officers had not done so, giving rise to corrosion in some instances as a result of handprints not having been wiped off before storage. In a conversation with Sgt Linsley, the applicant expressed warm appreciation for the work of S/Const Kustro as Blue Mountains LAC licensing officer (MV001 MOD 1:25:00 – 1:27:00), saying he was the most efficient the district had had since the first officer who had held that position. In a different context, Sgt Linsley stressed that when conducting firearms audits and seizures, police were obliged scrupulously to follow each prescribed provision and step "to the letter". 5. Many of the firearms were held in steel safes, but some were in horizontal wall racks. Made of steel, the racks were built to a special design by a local fabricator, the applicant said. The collecting officer commented that it was a good method for securing them. John Cramp is seen handing the collecting officer keys to open the solid cylindrical locks bolted through the trigger guard that were securing each gun (id., 52:00 – 55:00). At some points what appeared to be some self-loading (semi-automatic) shotguns held in wall racks in that way are shown being removed (id., 1:13:23 – 1:19:07; 1:53:00). 6. The manner and atmosphere in which this all-day operation was conducted contrast starkly with D/Sgt Erhardt's account of the 2005 audit and seizure and the description of the SLED inspection as having been marked by obstructive, bullying and sarcastic behaviour by Mr and Mrs Cramp. 7. Also noticeable is the manner in which what would appear to be semi-automatic (category D) shotguns were secured. While they might not have complied with the regulations, as the breech blocks had not been removed nor had actual trigger locks been fitted, the cylindrical locks through the trigger guards in practice would presumably have made the firearms inoperable. They could not have been fired, nor could they have been removed by an intending thief without a key without severely damaging or destroying them. The record does not show whether that circumstance was the subject of submissions or played any part in the Local Court's decision to dismiss all the charges, but it has a bearing on the gravity of the contravention and therefore on the applicant's fitness and propriety. 8. The matters arising from the police search and seizure on 10 September 2015 are obviously more significant than the 2005 charges, being more recent, but it is significant that all the 2015 charges were dismissed after a full hearing of the evidence, and in addition to the observations above there are some uncertainties in the evidence that raise questions about the seriousness of the contraventions alleged. 9. Nevertheless, although there is no burden of proof in these proceedings, the applicant's failure to give any evidence, whether oral or by affidavit, statutory declaration or formal statement, does not assist her case. D/Sgt Erhardt was of the opinion that neither the applicant nor John Cramp was a fit and proper person to hold a firearms dealer licence. Her contacts with the applicant appear to have ceased, however, in 2009. 10. The applicant has never had any criminal convictions, nor have any offences been proved against her. She has no record of violence, or threatened violence, nor is there any evidence of careless or improper use of firearms such as directly to endanger public safety. There have been no known thefts or other losses of firearms in her charge. She has held a master licence under the Security Industry Act since 2004. On balance, therefore, I do not think that the evidence overall suffices for a finding that the applicant is not now a fit and proper person to hold the licence sought. The respondent also relies on other grounds, however. The public interest 1. Besides the fitness and propriety ground, the respondent submits that it would be contrary to the public interest to allow the applicant to hold a firearms dealer licence. The Commissioner submits that her individual conduct raises serious concerns for public safety in relation to firearms such that the applicant should not hold a dealer licence. Further, the applicant's domestic circumstances raise serious public safety concerns in relation to firearms. 2. The phrase "public interest" is not defined in the Firearms Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 1. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation. 1. The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the present context, and given the objects of the Firearms Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety. 2. The first consideration on which the respondent relies under the public interest ground is that the applicant has not been honest in the present application. It did not include any "close associate" details although it is clear that the applicant does not intend to operate a firearms dealer business alone and that her husband John Cramp will be directly and significantly involved in operating it. At the time of the application he was a "prescribed person" for the purposes of the Act by reason of his convictions on the 19 storage and possession counts referred to above within a period of 10 years. Consequently it would have been an offence for him to participate in managing a firearms business while he remained a prescribed person (s 44A(3)(b) and (1)(b)). Further, her application was lodged only 2 months and 3 days after the notice of refusal of a licence was issued to her husband. 3. It is clear that the applicant explicitly, and not by mere oversight, did not declare any close associates in her application (exhibit R1, pp 127 – 128). On the other hand, as the internal review reasons note (exhibit R1, p 153), and it is not disputed, in a letter dated 23 June 2017 in support of her application she repeatedly uses the plural pronouns "we" and "our" when describing her plans for the business. 4. While it sometimes happens that even sole traders will use the first person plural in their correspondence, presumably seeking to give an appearance of substantiality, in this case the inference is reinforced by an email dated 3 March 2019 from John Cramp to his legal adviser (ibid.) requesting an update on the progress of the application which, again, consistently uses the plural and confirms his financial interest and his intention to be actively involved in the business if a firearms dealer licence is issued: "At present we are still in limbo and have been for the past 2 and a half years in this 5th bout in the NSW Court System. Aside from NOT doing any business with people who require our services we are again losing money and our Retirement Fund is sliding downhill fast". 5. Of concern also in the respondent's submission is the conduct of both Mr and Mrs Cramp when questioned in relation to contraventions of the Security Industry Act on 17 February 2017. The SLED officers reported that the applicant was unwilling to cooperate, initially refusing to attend the audit location, and did not do so until persuaded by her son. In the course of a rather tense interaction, John Cramp picked up an antique rifle in an aggressive manner and made a number of aggressive statements, including, "I have bloody well had enough of this, move outta my way…. I am getting out of here before I say or do something I regret" (id., 154). No videorecording of the episode is in evidence. 6. Discourtesy or curmudgeonliness on the part of an applicant or associate might not be a sufficient ground for licence refusal and SLED did not suspend or revoke the applicant's license as a result. While this episode did not concern firearms legislation, the conduct suggests John Cramp's willingness forcefully to associate himself with all businesses operated from the Faulconbridge address and does not inspire confidence that the applicant herself would meticulously exercise the powers and responsibilities of a firearms dealer, bearing in mind the important part of that such dealers play in the regulatory scheme. Further, any tendency to engage in aggressive behaviour while holding a firearm, even an antique, must be somewhat troubling in this context. I note, however, the contrast between the account of this incident and the impression conveyed by the recording of the 10 September 2015 episode, which is outlined above. 7. The applicant's failure to disclose a (then) prescribed person as a close associate in her application indicates a lack of capacity or commitment properly to consider, observe and respect firearms legislation: Constantin, [56]. I do not find that John Cramp is not a fit and proper person to be associated with a dealership; a tribunal would normally be cautious about making contested findings of fact potentially adverse to a person who is neither party to, nor a witness in, the proceedings. But that is not the point. The point is that the Commissioner cannot properly evaluate applications unless applicants make full disclosure as required. The fact that the Firearms Registry was probably aware of the relationship is immaterial. 8. Of course, the applicant could have an answer to that contention. It could be that she was proposing to make firm arrangements to ensure that her husband would not be involved in the operation of the business, similar to those she appears to have made on an earlier occasion in relation to her son's dealer licence. But the applicant has adduced no evidence on that point, or on any other point. It is not enough for her to say, as she does, that the respondent has raised certain objections but that it is not incumbent on her to present any more evidence than she did at the time of making the application. Domestic circumstances 1. The respondent also relies on the related ground under s 11(4)(a), which requires the Commissioner not to issue a licence if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances. John and Marilyn Cramp are spouses residing at the same address, where the dealership business has also been located. It is clear from the evidence going back to 2004 that they operate the dealership, as well as the security operation, as a family business. As this tribunal's predecessor established, in such circumstances there is no basis for differentiating between the conduct of the applicant herself and that of her husband as far as public safety is concerned (Tolley v Commissioner of Police, New South Wales Police ([2006] NSWADT 149, [31]). 2. While there is reason to believe that because of the applicant's domestic circumstances, John Cramp would be involved in running the business, that does not necessarily mean that the applicant would not personally exercise continuous and responsible control over firearms within the meaning of s 11(4)(a). Although the business has been the subject of a large number of firearms charges, most of them ultimately dismissed, there does not appear to be any evidence of breaches of a kind that would directly endanger public safety. 3. There have been no thefts of firearms from the business and no instances of firearms being left unattended or used in a careless or dangerous manner. The storage arrangements appear to be exceedingly robust. During the years when the applicant was solely responsible for the business under authorization in respect of David Cramp, the Blue Mountains LAC licensing officer had no complaints or criticisms about her handling and storage of firearms. A refusal under s 11(4)(a) does not appear to be warranted. 4. On all the evidence as it stands, however, I conclude that it is not in the public interest for a firearms dealer licence to be issued to the applicant at the present time. Insurance and local authority consent 1. The respondent submits that the applicant has failed to provide evidence of a local authority's concerned to, or approval of, the use of the applicant's residential address for a firearms dealership business as required by cl 39(1) of the Firearms Regulation 2017. Nor has she provided evidence of a public liability insurance policy of the kind required by cl 43 of that Regulation. 2. The applicant does not dispute that contention but, as the respondent points out, the 2017 regulation commenced after the applicant submitted her application. The tribunal must, however, apply the law in force as at the date of its decision: Foley v Commissioner of Police [2005] NSWADT 12, [5]. Thus a licence could not be issued to the applicant until those requirements were satisfied. Whether applicant to be primarily responsible for the business : s 17B(b) 1. That finding is sufficient to dispose of the present application. But in addition, in light of the history of this matter, especially since 2005, the tribunal cannot be satisfied that the applicant is to be the person primarily responsible for the management of the business to be carried on under the authority of a licence. The applicant's husband John Cramp is a "close associate" for the purposes of s 4B of the Act. He was formerly a prescribed person under the legislation and as such was not authorized to possess or use firearms in any capacity between 2 November 2004 and 25 June 2019. He is a man of forceful personality and strong opinions who seems unlikely to be content to play a subsidiary role in the business. 2. Mr Cramp's conduct in the firearms and security businesses over the years suggests that he, rather than the applicant, could be the person primarily responsible for the business were a licence to be granted. Again, the applicant had the opportunity of adducing evidence to refute that inference, but she failed to do so. Consequently, under s 17B(b) a firearms dealer licence should not be issued to her. 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 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: 19 May 2020