Peter Plessas v Commissioner of Police, NSW Police [2004] NSWADT 29 (13 February 2004)

Last Updated: 16 April 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Peter Plessas v Commissioner of Police, NSW Police [2004] NSWADT 29


PARTIES: APPLICANT
Peter Plessas
RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS: 033191

HEARING DATES: 23/09/2003

SUBMISSIONS CLOSED: 23/09/2003



DECISION DATE: 13/02/2004

BEFORE: Montgomery S - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Firearms (General) Regulation 1997
Firearms Act 1996

CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354

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

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
M Allars

RESPONDENT REPRESENTATIVE: RESPONDENT
M Buchanan, solicitor

ORDERS: 1. The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr Peter Plessas for the grant of a Category AB firearms licence under the Firearms Act 1996 is set aside. In substitution for that decision, the decision is made that Mr Peter Plessas is to be issued with a Category AB firearms licence.


Reasons for Decision:

Background

1 These proceedings relate to a decision dated 16 June 2003 by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") refusing an application by Mr Peter Plessas for a Category AB firearms licence under the Firearms Act 1996 ("the Act"). Mr Plessas had applied for the licence on 3 February 2003 for the genuine reasons of sport/target shooting and recreational hunting/vermin control.

2 Mr Plessas had previously held a Category AB firearms licence however that licence was revoked on 25 March 2002. That revocation followed a hearing in the Bankstown Local Court on 30 January 2002 in which Mr Plessas was found guilty of an offence of `Fire firearm in or near public place'. This finding was in relation to an incident that was said to have occurred near Peak Hill on Sunday 5 August 2001. A Police informant identified a particular vehicle and advised that the occupants of the vehicle had been shooting firearms from the roadway. Mr Plessas and his cousin Mr Con Plessas were later stopped by police and questioned. The Court findings were the result of charges laid against him at that time.

3 No conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999 and Mr Plessas entered into a twelve month bond to be of good behaviour. That bond had expired at the time Mr Plessas made the licence application.

4 By letter dated 2 April 2003 Mr Plessas wrote to the Commissioner’s delegate and requested an internal review of the decision to refuse his application. That review was finalised on 16 June 2003 and the original decision was affirmed.

5 The Commissioner's delegate who made the decision gave detailed reasons for the decision and Mr. Plessas was notified of the outcome of the review and those reasons.

Reviewable decision

6 The reviewable decision is that of the Commissioner to refuse Mr. Plessas’ application. On 15 July 2003 Mr. Plessas applied to this Tribunal for review of the Commissioner's decision. The matter was listed before me on 5 August 2003 at which time I made directions for the filing of documents and the matter was listed for hearing on 23 September 2003.

Nature of proceedings

7 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

8 These are not adversarial proceedings in which Mr. Plessas carries an onus of proof. Mr. Plessas, by making the application, triggers a process of merits review by the Tribunal. Mr. Plessas does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Plessas and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

9 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and "there is no presumption that the decision of the [Commissioner] is correct" (McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357).

10 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation

11 The relevant provisions are found in section 11 of the Act and Clauses 5 and 26 of the Firearms (General) Regulation 1997 ("the Regulation"). As so far as relevant to these proceedings section 11 of the Act provides:

"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.

(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

...

(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.

...

(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 who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or

(e) is subject to a firearms prohibition order.

...

(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."

12 Clause 5 of the Regulation provides:

"5 Offences that disqualify applicants

For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(a) Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm, or any other weapon, committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction)."

13 Clause 26 of the Regulations provides:

"26 Recreational hunting/vermin control - persons who are not members of approved hunting clubs

(1) If an applicant for a licence (not being a member of an approved hunting club) proposes to establish recreational hunting/vermin control as a genuine reason for being issued with the licence and, in order to do so, is required to produce proof of the permission to shoot on rural land in accordance with section 12 of the Act, the applicant must produce with the application:

(a) the permission in writing, or

(b) a statutory declaration verifying that the permission has been given,

as evidence that the permission has been given.

(2) During the term of a licence issued to an applicant referred to in this clause, the licensee may lawfully possess or use a firearm (as authorised by the licence) on land other than the land specified in respect of the application if:

(a) the licensee has been given, and is able to produce, the written permission of the owner or occupier of that other land (or of an officer of the relevant agency concerned) to shoot on that other land, or

(b) the licensee has been given permission, as verified by statutory declaration, by that owner, occupier or agency to shoot on that other land.

(3) Any permission given in accordance with this clause (including any statutory declaration verifying that any such permission has been given) must describe the land to which the permission relates and the type of game to be shot."

Mr. Plessas’ case

14 Ms. Allars appeared on Mr. Plessas’ behalf and also provided written submissions in support of his case. Mr. Plessas’ case is essentially that the Commissioner's decision was not the correct and preferable decision because there is not sufficient logical probative evidence to allow it to be reached.

15 There is discretion under section 11 of the Act to issue or refuse a licence in respect of an application and that the discretionary power is limited by section 11(2)-(6) and 11(8) of the Act so that the Commissioner, and therefore the Tribunal, is not to grant a licence in the circumstances there described. Ms. Allars submitted that none of those provisions preclude the grant of a licence to Mr. Plessas.

16 In particular, Mr. Plessas has not been convicted of offences prescribed by clause 5(a) of the Regulation since no conviction was recorded. Section 11(5)(b) of the Act was therefore inapplicable. Mr. Plessas has carried out his obligations under the good behaviour bonds which expired on 30 January 2003. Section 11(5)(d) was therefore inapplicable. There is no suggestion that the criteria set out in section 11(4) relating to the ability to exercise control over firearms were applicable. There was no evidence of criminal intelligence or other criminal information so as to render section 11(5A) applicable. The Commissioner’s delegate made the decision to refuse the application under section 11(7), determining that the issue of the licence would be contrary to the public interest.

17 In Ms. Allars’ submission, in order for the Tribunal to refuse the licence applications it would need to "consider" that the issue of the licences to Mr. Plessas would be contrary to the public interest and that Mr. Plessas is not a fit and proper person. The Tribunal's formation of a view as to grant of the licences being contrary to the public interest is a jurisdictional precondition to the Tribunal's exercise of the power to refuse the applications. If the Tribunal is unable to reach such a view, then it has no power to refuse the applications under s 11(7). It can only do so under s 11(1) and (3)(a) but the matters going to the discretion under those provisions will be similar.

18 Ms Allars made detailed submissions in relation to the approach that should be taken in assessing the facts of the incident that lead to the Local Court proceedings and to the outcome of those proceedings. Ms Allars submitted:

"5.2 The Tribunal must accept as a fact that a conviction which was not recorded was made. Where a decision is based on the fact of a conviction the person seeking to upset the challenged decision cannot go behind the fact of the conviction and endeavour to show he or she was innocent of the charge: Minister for Immigration and Ethnic Affairs v Daniel (1981) 39 ALR 649; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234. That is true of the jurisdiction of the federal Administrative Appeals Tribunal ("AAT") to review criminal deportation decisions: See also Luu v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 337. It is not open to the deportee to invite the AAT to set at nought the conviction that is said to ground the deportation order.

5.3 However the criminal deportation power falls into the first of two categories of case which were identified by Viscount Simon in General Medical Council v Spackman [1943] AC 627, 634-5. In the first category of case, the conviction is the foundation for the exercise of the power and no challenge can be made to the conviction or the essential facts on which it is based. In the second category of case, the exercise of power is not founded on a criminal conviction, but the conviction is relevant to the exercise of the power. In that category a challenge may be made to the essential facts on which the conviction is based.

5.4 That distinction was approved by Davies J in Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578, 582. In Saffron the Full Court held that the civil proceedings in the AAT relating to taxation matters could not be used for the ulterior object of setting at nought the taxpayer's conviction, but that the taxpayer was entitled to lead evidence which contradicted one of the matters of fact on which his conviction was based. The AAT could not treat a conviction as conclusive proof of the essential facts upon which conviction was based.

5.5 Also falling into Viscount Simon's second category was the power considered in Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276. The question arose as to whether it was open to the AAT to go behind a conviction of making false statements concerning a de facto relationship to obtain a widow's pension, and make a finding that the recipient of the pension had not been living in a de facto relationship. The Full Federal Court upheld the AAT's decision, holding that it was open to the widow to challenge the essential facts on which the conviction was based, notwithstanding that the conviction may have been relevant to the exercise of the power under challenge: [1993] FCA 213; (1993) 42 FCR 276, 281 per Spender, Gummow and Lee JJ. Since the Department put no material before the AAT to support a conclusion that any admissions were made by the widow, the factual issue turned on the material before the AAT, including documents which had been before the court of petty sessions in which she was convicted. It was the function of the AAT to engage in a fresh fact finding exercise. It did so and reached a factual conclusion in her favour. The Full Court reversed the decision of the primary judge that the AAT had erred in failing to give weight to the fact of conviction. This the AAT had done, although the AAT reached a different conclusion as to the underlying facts.

5.6 The authorities falling into the two categories of case were recently reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313. Branson J drew a distinction between the statutory provisions in Ridley and those in the criminal deportation cases, where the provision presupposes the significance of a criminal conviction. In this first category of cases there is a heavy onus on the person who seeks to challenge the facts on which the conviction was based. However:

"This heavy onus will, as matter of logic, be more easily satisfied where the criminal conviction and sentence is followed a plea of guilty than where the conviction and sentence follow a contested factual hearing": [2000] FCA 1385; (2000) 106 FCR 313, 325 at [43].

5.7 In Ali itself the deportee pleaded guilty in relation to a conviction for occasioning actual bodily harm arising out of a fight in a police station, but gave the AAT an explanation for this, which the AAT accepted as credible. Branson J found no error in the AAT's giving less weight to this conviction than did the primary decision-maker: [2000] FCA 1385; (2000) 106 FCR 313, 326 at [48]. Similarly the AAT did not err in accepting the deportee's evidence in relation to a conviction for stealing a motor vehicle, where he had also pleaded guilty, that he was a passenger rather than the driver: [2000] FCA 1385; (2000) 106 FCR 313, 326 at [49]. However Branson J held that the AAT did err in not giving weight to a "road rage" conviction and in holding that the deportee may have been wrongly convicted, given that the deportee had defended this charge and unsuccessfully appealed this conviction: ibid 326 at [47, 327 at [50]-[51).

5.8 Further, even in the first category of case, specifically in the criminal deportation review jurisdiction of the AAT, the AAT is required to make its own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of the conduct which led to the conviction and the significance of such conduct so far as the risk of recidivism is concerned: [2000] FCA 1385; (2000) 106 FCR 313, 326 at [45]. This is illustrated by the recent AAT decision of Re Ushakov and Minister for Immigration and Multicultural and Indigenous Affairs: [2003] AATA 761 where the AAT substituted its decision that the applicant's visa was not cancelled. It found that the circumstances in which he committed the offences of malicious wounding and occasioning actual bodily harm, together with evidence of remorse, rehabilitation, recent good conduct and references as to good character and hardship to the family, indicated he was of no risk to the Australian community.

5.9 Where a licence is refused pursuant to s 11(5)(b) of the Act and reg 5(a) of the Regulation, the exercise of power arises out of, and is founded on, the conviction for a prescribed offence. Such a decision falls into the first category of case identified by Viscount Simon in Spackman, where a heavy onus lies on the applicant in challenging the essential facts behind the conviction, although the onus is lighter where the applicant has pleaded guilty.

5.10 That is not the present case. While an offence relating to the possession or use of a firearm is a prescribe offence under reg 5(a), [Mr. Plessas was] not "convicted" of such an offence. In Pantle v Commissioner of Police, New South Wale Police Service [2001] NSWADT 207 at [26] the Tribunal held that where an offence of possession of a prohibited plant was proved, and under s 556A of the Crim es Act 1900 (NSW) (since repealed) the court did not proceed to a conviction, the person was not "convicted" of the offence for the purposes of s 11(5)(b) of the Act.

5.11 [T]he power to be exercised by the Tribunal is that conferred by s 11(7) of the Act. The question for the Tribunal is whether it considers that the issue of the licences would be contrary to the public interest. The present case therefore belongs to the second category of case, where the conviction is a relevant factor, but not the foundation for the exercise of power.

5.12 The Tribunal must accept as a fact that Mr. Plessas pleaded guilty to the offences of "fire firearm in or near public place", that convictions were not recorded and that [he was] placed on 12 month good behaviour bonds. However, applying Saffron, Ridley and Ali, the Tribunal is not required to accept as facts the matters set out in the COPS record. The Tribunal is required to reach the correct or preferable decision on the material before it."

19 With respect to the issue of "public interest" Ms Allars referred to the views expressed by Senior Constable Steve Bloomfield and argued that those views are consistent with Mr Plessas’ evidence as to the nature of the location and that he and his cousin checked for any sign of animals or humans. In a statement dated 24 April 2003 Senior Constable Bloomfield stated:

"The informants reported seeing both defendants travelling slowly upon rural roads within the area. Their actions caused the informants to watch them. Both defendants were seen to alight from the vehicle, walk into paddocks and fire their respective firearms on a number of occasions.

The areas in question are sparsely populated and it is generally easy to see if a dwelling/ person/ animal or machinery is nearby. Locations where the offences took place, whilst being close to civilisation in local terms, were probably far enough away that if the defendants had used caution, would probably not have caused damage."

20 Ms Allars argued that the Commissioner had accepted this statement. She further argued that the COPS report stated that:

complainants by telephone alleged that Mr. Plessas shot from the roadway;

Mr Plessas made a statement that they set up bottles as targets near their camps;

Mr Plessas made a statement that before shooting at the bottles, they checked for human and stock habitation;

Mr Plessas made a statement that they believed they acted with appropriate care and responsibly; and

no damage was occasioned to stock or other property.

21 She argued that there is no evidence before the Tribunal that:

police officers observed Mr. Plessas shooting, or shooting from the road;

Mr Plessas admitted to shooting from the roadway;

Mr Plessas were at the time on private property without permission; or

the dirt road in question was a public road.

22 There is evidence before the Tribunal that Mr Plessas:

had convictions for two minor offences in 1990 and 1991 relating to driving while disqualified;

had permission to shoot on a property at Mudgee for the extermination of vermin and recreational shooting;

wrote to the Commissioner explaining that when the incident occurred he and his cousin were not successful in finding a property at Peak Hill on which to shoot, so set up a BBQ "about 200 metres from a dirt road in an open field a few, kilometres from anything", where they had a few shots at some empty bottles and cans, "shooting away from the dirt road, there were no farms, houses or animals around, there was no-one in any danger, otherwise I would never have discharged my firearm";

expressed his regret for the incident; and

provided character references that he was a responsible, honest and hard working family man

23 Ms Allars argued that the issue of whether granting the licence is contrary to the public interest requires a discretionary value judgment to be made. Relevant to that discretionary judgment are the objects of the Act, including improving public safety. She submitted that on the material before it, it is not open to the Tribunal to infer that the conduct of Mr Plessas threatened public safety, or that there exists a risk that Mr Plessas’ conduct in the future would threaten public safety.

24 In Ms Allars’ submission there is only hearsay evidence, given by two unknown persons by telephone, apparently not supported by any written statement made to the police, that Mr Plessas fired from the roadway into paddocks. Hearsay evidence which has not been tested in cross-examination deserves little weight. This evidence is also ambiguous.

25 The allegation that Mr Plessas and his cousin "fired from the roadway", may be interpreted as "away from the roadway". That is consistent with Mr Plessas’ evidence that they fired from a distance of 200 metres away from the roadway and in a direction away from the roadway.

26 To refuse the issue of a licence the Tribunal must be satisfied that granting the licences would be contrary to the public interest. In Ms Allars’ submission this poses a lower evidentiary threshold than forming a satisfaction that granting the licences would be in the public interest. There is a public interest in assisting farmers to get rid of vermin, foxes and rabbits. There is no difference in terms of public safety between shooting cans on a property and shooting rabbits on a property. What is important is that the shooters are in a place remote from human habitation and that they check for the presence of humans or animals. There is uncontradicted evidence from Mr Plessas and from Senior Constable Bloomfield, that that was done in the present case. The offences were at the low end of the scale of significance.

27 Ms Allars submitted that on the evidence it is open to the Tribunal to conclude that Mr Plessas has made out a case that it is not contrary to the public interest for the purposes of s 11(7) of the Act for Mr Plessas to be granted a licence.

28 Given the past conduct of Mr Plessas, the Tribunal should conclude that the offences arose from what was clearly an isolated incident. This is a case where the evidence indicates that the incident is unlikely to be repeated. In the circumstances, the correct and preferable decision is that Mr Plessas is a fit and proper person to hold a licence and the discretion should be exercised to grant the licence sought.

The Commissioner's case

29 Ms Buchanan appeared on behalf of the Commissioner. The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. There is no suggestion that Mr Plessas is not a person of good character but rather there is a public interest issue to be considered.

30 In so far as they are relevant to these proceedings, the reasons given following the internal review and upon which the Commissioner relies provided:

"D. REASONING PROCESS:

The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to refuse a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application.

After fully and independently considering all relevant matters I make the following fresh determination.

In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms.

Given this principal, I am of the opinion that your application for a firearms licence should be refused on the grounds that the issue of such a licence to you would be contrary to the public interest.

Your previous licence was revoked on 25 March 2002, because of an incident that potentially threatened public safety.

On 5 August 2001, police received two telephone complaints regarding suspicious activity by yourself and your cousin in a vehicle in the area. The witnesses stated that you were seen discharging your firearms from the roadway into paddocks. They stated that your vehicle was driven slowly along the road, and then you would alight from the vehicle, walk into a paddock and discharge your firearm. The witnesses indicated that this occurred on a number of occasions.

I hold a number of concerns regarding this incident. When questioned by police, you stated that you had been planning to stay and shoot on a property in the Mudgee area but that you had decided to travel further west in the hope of locating an alternative site. Police advise that as far as they can ascertain, you had not made any enquires from local property owners in this regard. Senior Constable Bloomfield advised in a report dated 24 April 2002, "as is fairly typical in matters such as this, I believe that this was a case of a number of individuals having firearms and a desire to use them, but no valid reason or place to shoot. Such people tend to get frustrated and neglect their responsibilities as firearms holders". I concur with Senior Constable Bloomfield's opinion. In addition, I am of the opinion that the public would also hold concerns that you and your cousin were driving, with firearms and ammunition in your vehicle, with no firm destination in mind, in the hope of locating a property on which you would be given permission to shoot.

I hold further concerns regarding your advice that when you could not find a property on which to shoot, you decided to "have a BBQ", which you set up "about 200 metres from a dirt road in an open field a few kilometres from anything". Having finished your barbecue you set up some bottles and cans in the paddock and had "a few shots" at them. Firstly, this action presumably involved you trespassing on private property, and secondly and more importantly, involved you compromising public safety. Notwithstanding your advice that you checked for both human and stock habitation before shooting in the paddock and that no damage was occasioned, I am of the opinion that your actions had the potential to compromise public safety.

In addition, I am satisfied that the public would view your actions as a serious breach of the conditions upon which you were granted a firearms licence and were also in direct contradiction to the principles of the Act, in aiming to improve public safety.

The two witnesses who notified police regarding your actions stated that you and your cousin drove slowly along the road, alighted from the vehicle, then walked into a paddock and discharged your firearms. They further advise that this occurred not once but on a number of occasions. The fact that two separate witnesses telephoned police regarding your actions, indicates to me that this was not a matter of you taking a few shots at bottles and cans after a careful check of the paddock but a more random and casual perusal of a paddock prior to discharging your firearm from the roadway or the paddock.

Police advise that the area in which you discharged your firearm is used extensively for sheep and cattle grazing. Further, Senior Constable Bloomfield advises that the locations where the offence took place, "whilst being close to civilisation in local terms, were probably far enough away that if caution were used, would probably not have caused damage". In my view, the public should not have to be satisfied with `probably' when their safety is involved.

Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm.

I have noted the references you have provided and the fact that the local magistrate saw fit not to record a conviction for this offence. However, the issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides:

"(Public interest) is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended the public interest discretion to 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 objection. "

In addition, I have noted your advice that you "regret your actions" and that "no kind of incident will ever happen again". I have also noted your statements that you "have been careful in the use of my firearms" and that you consider yourself "to be a responsible firearms holder". I would argue, however, that the finding of guilt for this offence proved that when previously licensed to use and possess firearms, you did not act with appropriate care and you were not responsible with your firearms. As such, I am not satisfied that you have changed your attitude towards firearms ownership or that you could now be trusted by the public to behave in a more careful or responsible manner.

I note your desire to hold a firearms licence to go "out to the country to unwind and relax" and to "spend quality time together" with your son. However, in the Second Reading speech on 25 June 1996 relating to the Act, The Hon Mr J W Shaw (Attorney General) said, (at 3557): "The legislation puts the public's right to safety before the privilege of gun ownership. "

Further, the desire for you to hold a firearms licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681, provides:

"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. "

In my opinion, when you were previously the holder of a firearms licence, you showed no regard for the conditions upon which your licence was issued or for the principles and objectives of the Act, which is to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety. As such, I am not satisfied that should a licence again be issued to you, the conditions of the licence would be upheld with any more diligence than previously shown.

I have weighed your stated desire to hold a firearms licence for recreational purposes against the circumstances of the offence for which you were found guilty and the `public safety' scope of the Act. Given that the ADT have held that the Act is to be interpreted narrowly and that public interest in the context of Clause 17 of the Firearms (General) Regulations 1997 requires paramount consideration be given to public safety, I have decided against varying the decision to refuse your application for a firearms licence."

31 Ms Buchanan argued that the Act and the Regulations require that Mr Plessas be a member of a shooting club and to have proof of permission to shoot on rural land because of his stated reason for wanting the permit, that is, sport/target shooting and recreational hunting/vermin control.

32 Ms Buchanan further argued that there is no evidence to suggest that Mr Plessas had permission to shoot on the land where it was alleged the he was shooting on 5 August 2001. If he did not have that permission it would have been a breach of the condition of his licence to shoot on that land. While there is no onus of proof in these proceedings it was open to Mr Plessas to give evidence that he had that permission.

33 Ms Buchanan submitted that Mr Plessas has held a licence for a long time and he should have been aware of the conditions of his licence. He should also have known that his actions were potentially dangerous. She argued that given the breach of the licence conditions and the risk to the public it is not in the public interest that Mr Plessas be permitted to hold a licence.

Findings

34 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:

That when Mr Plessas held a firearms licence previously, he enjoyed hunting and target shooting;

That Mr Plessas enjoyed going out to the country to unwind and relax and do some hunting with his son and spend quality time together;

That it is probable that on 5 August 2001 Mr Plessas did not have permission to shoot in the area in which he discharged his firearm;

That on 5 August 2001 the area where Mr Plessas discharged his firearm was used extensively for the grazing of sheep and cattle;

That on 30 January 2002 in the Bankstown Local Court Mr Plessas was found guilty of `Fire firearm in or near public place'. No conviction was recorded pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999 and Mr Plessas entered into a twelve month bond to be of good behaviour;

That Mr Plessas’ Category AB firearms licence was revoked on 25 March 2002;

That in regard to the offence in August 2001, Mr Plessas had travelled a long way to do some recreational shooting on a property, but the owner was not at home. He then proceeded to drive around and try to get onto other properties. He was not successful so he decided to have a BBQ which he set up about 200 metres from a dirt road in an open field a few kilometres from anything. He decided to take a few shots at some empty bottles and cans, shooting away from the dirt road. There were no farms, houses or animals around, and Mr Plessas considered that there was no-one in any danger otherwise he would not have discharged his firearm;

That Mr Plessas states that he has always taken his firearms licence very seriously and has been careful in both the storage and use of firearms;

That Mr Plessas considers himself to be a responsible firearms holder;

That Mr. Plessas states that he has always been careful to shoot on private properties;

That Mr Plessas does not have a criminal record and there was no conviction recorded against him for the firearms offence for which he was charged;

That Mr Plessas extremely regrets his actions of 5 August 2001 and wishes to have the opportunity again to be able to continue this recreational activity;

That Mr Plessas gives his complete assurance that no kind of incident will ever happen again.

35 The relevant provisions of the Act are found in section 11(7) which states that the Commissioner of Police may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. In these matters the Tribunal stands in the shoes of the Commissioner and must assess that issue. I agree with Ms Allars’ submission that in doing so, consideration must be given to the circumstances surrounding the offence that resulted in the Court’s finding against Mr Plessas’ (not merely to the finding itself) and the activities to which Mr Plessas’ application relates, namely target shooting, and recreational hunting/vermin control.

36 The question for the Tribunal is whether, based on all the evidence, it would be contrary to the public interest for Mr Plessas to be issued with the licence he seeks.

37 I agree that little weight can be given tot he anonymous hearsay evidence of the police informants where that evidence conflicts with evidence given by Mr Plessas. In my view, it is probable that the events of 5 August 2001 occurred as asserted by Mr Plessas. While I agree there is no onus of proof in these matters, if any evidence of permission to shoot on the land in question exists it would be expected to be held by Mr Plessas. In the absence of such evidence it is my view that Mr Plessas probably did not have such permission and his conduct was therefore a breach of the conditions of his licence. Mr Plessas had held a licence for many years prior to that incident and should have been aware of his obligation to obtain permission to shoot on rural land. In my view, the circumstances of the offence were such that the cancellation of Mr Plessas' licence would have been justified.

38 Nevertheless, I accept that the risks associated with Mr Plessas’ conduct were minimal. The statement from Senior Constable Bloomfield that the areas in question are sparsely populated and it is generally easy to see if a dwelling/ person/ animal or machinery is nearby supports this view. I also accept that Mr Plessas extremely regrets his actions of August 2001 and his complete assurance that no kind of incident will ever happen again.

39 There is no dispute that Mr Plessas has been found guilty of a firearms offence. This finding does him no credit. The Commissioner has good cause to be concerned that the objects of the legislation are upheld in the exercise of his discretion. Without the argument that was available to the Tribunal it is understandable how the Commissioner’s delegate formed the view that it is not in the public interest for the licence to be granted. Nevertheless, my decision is to be made taking into account all the available material and that includes material that was not available to the Commissioner’s delegate.

40 In the circumstances, I am satisfied that sufficient time has passed without further incident so that the public could be comfortable with Mr Plessas again holding a firearms licence. In my view, the offences for which Mr Plessas was found guilty no longer constitute a sufficient justification for refusing a firearms licence today.

41 Having weighed the evidence, it is my view that the licence should be granted. Accordingly, it is appropriate in the circumstances that the Commissioner’s decision is set aside.

Orders

The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr Peter Plessas for the grant of a Category AB firearms licence under the Firearms Act 1996 is set aside. In substitution for that decision, the decision is made that Mr Peter Plessas is to be issued with a Category AB firearms licence.