F Fortuna v Commissioner of Police , NSW Police Force P Fortuna v Commissioner of Police, NSW Police Force [2010] NSWADT 20 (22 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
F Fortuna v Commissioner of Police , NSW Police Force P Fortuna v Commissioner of Police, NSW Police Force [2010] NSWADT 20


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANTS
Florian Peter Fortuna
Patrick William Fortuna



FILE NUMBERS:
083005
083260

HEARING DATES:
8 December 2008
28 and 29 May 2009

SUBMISSIONS CLOSED:
6 July 2009



DATE OF DECISION:
22 January 2010

BEFORE:
Higgins S - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Firearms Act 1996Firearms Regulations 1997
Liquor Act 1982

CASES CITED:
Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266
Australian Broadcasting Commission v Bond (1990) 170 CLR 231
Briginshaw v Briginshaw (1938) 60 CLR 360
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 101 ALD 459
Ward v The Commissioner of Police, New South Wales Police Service [2000] 28

TEXTS CITED:


APPLICATION:


MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
J Klarica barrister
RESPONDENT
M Lynch barrister


ORDERS:
1.The decision of the respondent to refuse Florian Peter Fortuna’s firearms licence is affirmed
2.The decision of the respondent to refuse Patrick William Fortuna’s firearms licence is set aside and remitted for further consideration in accordance with the Tribunal’s reasons for decision.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 The applicant, Florian Peter Fortuna (‘Mr Fortuna’), has sought review of a decision by the Commissioner of Police (‘the respondent’) to refuse his application for a firearms licence under the Firearms Act 1996 (‘Firearms Act’).

2 The applicant, Patrick William Fortuna (‘Patrick’), the son of Mr Fortuna, has also sought review of a decision by the respondent to refuse his application for a firearms licence under the Firearms Act.

3 By consent both applications were heard together. Although they were separate applications, the evidence relating to a police search of Mr Fortuna’s property, a farm, on 17 November 2004 was in part common to both applications.

Background
4 Mr Fortuna has been the holder of a firearms licence since December 1988. On 2 July 1999, he was issued with a category AB licence pursuant to the Firearms Act. That licence was due to expire on 12 August 2004. On 12 July 2004, Mr Fortuna lodged a licence reapplication form with the respondent. That application was approved in October 2004. However, the respondent put a stop on the photographic advice in regard to the approval being issued after the local police executed a search warrant on Mr Fortuna’s property, where he and his family lived (including Patrick who was aged 15 at the time).

5 In the course of their search the police seized 33 firearms, a silencer and a considerable amount of ammunition. Of the 33 firearms, 5 were registered in the name of Mr Fortuna (these were locked in Mr Fortuna’s gun safe), 8 were registered in the name of Mr Gordon Norman (of these 6 were in a metal cabinet in a tin shed near the caravan in which Mr Norman resided – the other 2 were found unsecured in Mr Norman’s car) and 1 was registered in the name of Mr O’Sullivan (also found unsecured in Mr Norman’s car). Also found in Mr Fortuna’s gun safe was a shortened, unregistered, air rifle. The remaining 18 firearms and silencer were also unregistered. Of these unregistered firearms, 12 were found secreted in a hidden cavity behind the mirror of the built-in wardrobe in the room where Patrick slept, 4 were found in Mr Norman’s car and the silencer and 2 pistols (both loaded) were found in a plastic bucket under the house behind a small stack of bricks between the ground and the floor of the house.

6 Mr Norman is an elderly man, who was present at the time of the police search. Mr Fortuna had met him through the Rural Fire Service some years previously. He had lived on the property since 2003 and was residing in a caravan that was about 900 metres from the main house where Mr Fortuna resided with his family. Mr Fortuna and Mr Norman were both holders of a firearms licence at that time. Patrick, who was 15 years of age, was the holder of a minor’s firearms training licence (‘minor’s permit’).

7 Also present at the time of the search of the property was a Mr Anthony Jenkins, a known criminal, who had been living on the property for less than a year. Both he and Mr Norman were helping Mr Fortuna on the farm.

8 During the search, police also found an ‘elaborate hydroponic’ cultivation system with 53 mature cannabis plants’ in a building on the property known as the ‘cheese factory’ or ‘old dairy’.

9 Police initially laid numerous firearms and drug related charges against Mr Fortuna following the search. He at all times denied any knowledge of the cannabis and the unregistered firearms, other than the shortened air rifle. All the drug related charges were subsequently discontinued. The firearms charges were amended and Mr Fortuna was committed for trial on these charges. He was ultimately indicted before the District Court on 6 charges of unlawful possession of the unregistered and prohibited firearms.

10 On 3 December 2004, Mr Fortuna’s firearms licence was suspended by the respondent.

11 Almost 2 years after the police search, on 15 November 2006, following a 3 day defended hearing in the District Court, Mr Fortuna was found not guilty of the firearms offences on which he had been indicted (charged).

12 In September 2007, Mr Fortuna, through his solicitor, wrote to the respondent requesting that his firearms licence be issued to him as he had been acquitted of all the charges which had been laid against him. When the respondent failed to issue the licence, on 7 January 2008, Mr Fortuna lodged an application with the Tribunal seeking review of a deemed refusal by the respondent to issue him with his licence.

13 By consent, on 29 February 2008, the respondent issued a notice of refusal of Mr Fortuna’s application of 12 July 2004 for his licence reapplication. It is that decision which is the subject of these proceedings.

14 Patrick was issued with a minor’s permit on 5 July 2003. Following the events of 17 November 2004 the local police also charged Patrick with an offence of concealing an indictable offence of another person, namely his father. Patrick at all times said he had no knowledge of the firearms secreted in his room. When Mr Fortuna was found not guilty of the charges that had been laid against him, the police no longer pressed the charge laid against Patrick.

15 Patrick’s minor firearms permit had been revoked on 27 March 2006. On 9 April 2008, Patrick, no longer a minor, applied for a Category AB licence. That application was refused by the respondent on 27 June 2008 and this decision was affirmed on internal review on 24 July 2008. It is the latter decision which is the subject of review in these proceedings.

16 The grounds on which the respondent refused Mr Fortuna’s and Patrick’s application for a licence was as follows:

(a) Mr Fortuna and Patrick were not a fit and proper person to hold a gun licence and could not be trusted to have possession of fire arms without danger to public safety: see paragraph 11(3)(a) of the Firearms Act;

(b) the respondent could not be satisfied that Mr Fortuna was capable of meeting the storage and safety requirements in the Firearms Act: see paragraph 11(3)(c) of the Firearms Act; and

(c) the issuing of a licence to Mr Fortuna or Patrick would be contrary to the public interest: see subsection 11(7) of the Firearms Act.
17 In reaching its decision, the respondent relied on the events of 17 November 2004 and other circumstances which the respondent asserted demonstrated that Mr Fortuna and Patrick had a ‘flagrant disregard’ for the requirements of the Firearms Act and the law generally. Of the 12 firearms secreted in Patrick’s room 3 were found to have DNA on them that matched Patrick’s DNA. The other circumstances relied on by the respondent were Mr Fortuna’s association with the Rebels Outlaw Motorcycle Gang, allegations of supplying prohibited drugs, assault and affray in 2000, convictions in December 2007 for selling liquor without a licence and the numerous intelligence reports about Mr Fortuna’s links with the motor cycle gang and/or drugs.

18 In regard to Patrick, the other circumstance relied on was an alleged association with the Rebels Outlaw Motorcycle Gang and an alleged assault by Patrick in September 2006.

Issues
19 It is not disputed that the role of the Tribunal is to determine, in accordance with the applicable law and the relevant facts, whether the decision of the respondent is the correct and preferable decision: see section 63 of the Administrative Decisions Tribunal Act 1997.

20 There is no dispute that the respondent has power under subsection 11(1) of the Firearms Act to issue a licence in respect of an application for a firearms licence, or to refuse any such application. Nor is it disputed that subsection 11(3) of the Firearms Act sets out those circumstances of which the respondent must be satisfied in order to issue a licence. That is, if the respondent is not satisfied of the circumstances set out in paragraph (a) to (d), the respondent has no power to issue a licence and he must refuse the application.

21 Nor is there a dispute that the power vested in the respondent under subsection 11(7) of the Firearms Act is discretionary. Under this subsection the respondent may refuse to issue a licence where the respondent considers that the issue of the licence would be contrary to the public interest.

22 The main area of dispute between the parties is factual concerning the knowledge of Mr Fortuna and Patrick about the unregistered firearms and the cannabis plant found on the property by police in November 2004. Mr Lynch, counsel for the respondent contended that on the basis of the material before it the Tribunal could be satisfied of the following:

(a) Mr Fortuna’s acknowledgement that he owned and shortened the unregistered air rifle and that he had placed the ammunition found in Patrick’s room was a clear demonstration of Mr Fortuna’s failure to comply with the strict storage requirements of the Firearms Act;

(b) Mr Fortuna’s property was used as an illegal armoury and the only inference available was that the unregistered weapons ‘could not have been there without the knowledge of Mr Fortuna’;

(c) as owner of the property, Mr Fortuna’s explanation that he did not know what was in the ‘old dairy’ was implausible as was his ‘last minute’ evidence of having disassociated himself with the Rebels Outlaw Motorcycle Gang; and

(d) Patrick had knowledge of the firearms that were secreted in his room and on the basis of the DNA evidence he had used 3 of them and he must have done so to the knowledge of his father.
23 Mr Klarica, counsel for Mr Fortuna and Patrick contended that the Tribunal, having before it the same evidence that was before the District Court, should not depart from the findings of the District Court in regards to Mr Fortuna’s knowledge or that of Patrick. Accordingly, on this basis, the Tribunal should find that Mr Fortuna and Patrick did not know and had no reason to know about the cannabis plantation in the ‘old diary’ or the unregistered firearms found by police on the property, other than the shortened air rifle.

24 The other area of dispute were the inferences the Tribunal should be drawn from: (a) Mr Fortuna’s association with the Rebels Outlaw Motorcycle Gang, his Liquor Act conviction, and allegations of aggressive behaviour (b) Patrick’s alleged involvement with Rebels Outlaw Motorcycle Gang and his alleged violent assault and theft of the victim’s wallet and mobile phone in 2006.

The evidence of the parties
25 The respondent tendered into evidence the section 58 documents in respect of each decision (Exhibit R2 and R13). Included in this material were the applicants’ respective firearms licence history and criminal history. The respondent also tendered into evidence the police brief of evidence in regard to the criminal proceedings before the District Court (Exhibit R3) and copies of the video taken during the course of the police search of Mr Fortuna’s property (Exhibit R5 and R6).

26 The respondent also tendered into evidence 2 statements of evidence by Detective Sergeant David James Scott, who was the police officer responsible for the police search of Mr Fortuna’s property (Exhibit R 1 for the purposes of Mr Fortuna’s application and R10 for the purpose of Patrick’s application). In his second statement (Exhibit R10), Detective Sergeant Scott identified those firearms which had been shown to have Patrick’s DNA profile on them. He also attached to his statement a copy of the police intelligence report which he asserted established that Patrick was also associated with the Rebels Outlaw Motor Cycle Gang. Mr Klarica objected to these statements being put into evidence as Detective Sergeant David James Scott was not available for cross-examination. However, I accepted both statements into evidence, subject to weight.

27 In the absence of Detective Sergeant Scott being available for cross-examination, the respondent called Sergeant Anthony Garry Hughes to give evidence. The Sergeant had also participated in the police search of Mr Fortuna’s property. Just prior to the hearing of these applications the respondent filed 2 statements of evidence of the Sergeant (Exhibit R 4 for the purposes of Mr Fortuna’s application and R14 for the purpose of Patrick’s application). In each statement the Sergeant made reference to the corresponding statement of Detective Sergeant Scott and he adopted his findings and conclusions.

28 The respondent also tendered into evidence a statement from Senior Constable Mark Shaw in regard to the 2006 alleged assault and theft by Patrick (Exhibit R11) and a Certificate of Analysis of Virginia Friedman dated 28 November 2008 in regard to the DNA testing of the firearms that were found to contain Patrick’s DNA (Exhibit R12).

29 Statements of evidence of Mr Fortuna and Patrick were put into evidence (Exhibit A1, A2 and A10). They each gave oral evidence and were cross-examined by Mr Lynch. The applicant’s also tendered into evidence the transcript of the proceedings before the District Court (Exhibit A3). It is noted that Patrick did not give evidence in those proceedings as the criminal charge that had been laid against him was still pending at that time. However, Mr Fortuna and Patrick’s mother and half brother, Robert, did give evidence.

30 Patrick also tendered into evidence a statement of Bryson Payne, President of the Batemans Bay Branch of the Sporting Shooters Association of Australia.

Findings of fact
31 As there are a number of matters of fact which are in issue it is appropriate to deal with these first.

32 I agree with the submissions of Mr Lynch, that matters of fact must be established, from the evidence before the Tribunal. That is, although the Tribunal is not bound by the rules of evidence (see subsection 73(2) of the Administrative Decisions Tribunal Act 1997) it must still be satisfied, on the material before it that the material facts are established to the requisite standard of proof; namely, on the balance of probabilities.

33 It is well accepted that the ‘satisfaction’ required is ‘... [An] actual persuasion of its occurrence or existence’ or its ‘reasonable satisfaction’: see Briginshaw v Briginshaw (1938) 60 CLR 360 at 361-362. In that decision Dickson J went on to say that:

‘[a] reasonable satisfaction is to be attained having regard to matters such as’ the ‘seriousness of the allegation that has been made, the inherent unlikelihood of the occurrence of a given description, or the gravity of the consequences flown from the particular finding.’

34 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449-50, Mason CJ, Brennan, Dean and Gaudron JJ, in applying the principles in Briginshaw said that the civil standard of proof applies:

‘even where the matter to be proven involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. ’ see also Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 101 ALD 459 at [110] and [126].

35 As I have mentioned Mr Fortuna was charged with ‘possession’ offences. By reason of section 4A of the Firearms Act Mr Fortuna was presumed to have been in ‘possession’ of the firearms the subject of the charges because they were found on his property. This meant that in the proceedings before the District Court the police were only required to establish that the firearms were found on Mr Fortuna’s property. However, section 4A also prescribes circumstances where the presumption in regard to ‘possession’ may be rebutted. This included the circumstance where the accused (Mr Fortuna in this case) was able to prove, on the on the balance of probabilities, that he did not know and could not reasonably be expected to have known that the firearms the subject of the charge(s) were on his property.

36 These applications are merit review proceedings and while there is no onus on Mr Fortuna, Patrick or the respondent, the Tribunal is nevertheless required to make findings of fact that are relevant to the issue of a firearms license. In these applications, although ‘knowledge’ of Mr Fortuna and Patrick about the unregistered firearms and the cannabis plantation are a fact in issue, they are not the only matters in issue.

37 The issue of a firearms licence is a regulated activity, which is governed by the underlying principle that firearm possession and use is a privilege and conditional on the overriding need to ensure public safety: see section 3(1) of the Firearms Act. Accordingly, the Tribunal’s enquiry is broader than that which was before the District Court in regard to the criminal proceedings against Mr Fortuna. Hence its findings are not limited to findings about Mr Fortuna and Patrick’s ‘knowledge’ of the unregistered firearms and the cannabis plantation found by the police in their search. The Tribunal, as was the respondent, is required to have regard to all established facts relevant to the issue of public safety. This includes Mr Fortuna’s conduct, as owner of the property, to ensure that public safety is not placed at risk.

Knowledge of Mr Fortuna and Patrick in regard to the unregistered, prohibited and unsecured firearms and unsecured ammunition found during the police search
38 The undisputed evidence is that Mr Fortuna and his family moved to the property in the late 1980’s and in 1994 Mr Fortuna became the registered owner of the property, a farm on which Mr Fortuna works. Located on the property is the main house where, on 17 November 2004, Mr Fortuna resided with his wife (now ex-wife), and his two sons Mark (then aged 11) and Patrick (then aged 15). As I have mentioned also living in the main house was Mr Jenkins, who left the property soon after the police search and Mr Fortuna has not seen or heard of him since. Nor have the police. Mr Norman was residing in a caravan situated about 900 metres west of the main house.

39 As the unregistered, prohibited and unsecured firearms and the unsecured ammunition were found in different places I have dealt with them separately.

40 The firearms in Patrick’s room - The firearms found secreted behind the mirror of the built-in wardrobe in Patrick’s room were covered with a coat that Mr Fortuna said belonged to his father-in-law, Mr Wagg, also a shooter. Mr Wagg had resided in this room for some years prior to his death in 2002.

41 The video taken by police when executing the warrant demonstrates that these firearms were not visible when either of the 2 wardrobe doors was opened. They had only been found after the police sniffer dogs had identified the bottom of the wardrobe as being an area of concern, resulting in the police emptying the wardrobe and removing part of flooring on one side of the wardrobe and finding a magazine. The police then stepped into the back of the wardrobe and found part of the internal side wall of the wardrobe had been removed giving access to the hidden cavity behind the mirror in which the firearms were found. Finding this hidden cavity did not appear to be an easy exercise.

42 The video shows police removing the firearms from the wardrobe and placing them on the bed that was in Patrick’s room. Found were 5 prohibited firearms, 3 repeating rifles (1 of which was stolen), 3 single shot rifles and 1 double barrel shot gun. The double barrel shot gun was the same type of shot gun that Mr Fortuna had only recently purchased and which was registered and found secured in his gun safe (i.e. the Boito 410 double barrel shot gun).

43 In his evidence, Mr Fortuna insisted that he did not know, nor did he have any reason to know, that there were firearms behind the built-in wardrobe in Patrick’s room. He said he did not go into this room when his father in law resided in it, nor had he gone into the room since Patrick took it over. There was evidence of Mr Jenkins having resided in the room for a short period before Patrick had moved into it.

44 It was Patrick’s evidence that his mother had moved his things into the room about a year before the police executed the search warrant. He acknowledged that he regularly used the wardrobe in his room. He said he would throw things into the cupboards of the wardrobe, but did not at any time realise that there was a hidden cavity behind the mirror which was accessible from the back of the cupboard. He also said that it was his mother and not he who regularly cleaned his room.

45 It is noted that Mrs Fortuna, in her evidence before the District Court, said that her father lived in that room for about 3 years prior to his death in December 2002 and that he had used the wardrobe for his belongings (Exhibit A3 – T15/11/06 at 69). She said she cleaned out the room after he died and did not see the hidden cavity behind the mirror of the built in wardrobe or the firearms that were secreted there (at 70). She explained that she did not walk into the wardrobe as she only has one leg and cannot get into places like that. She identified the coat which was hanging over the secreted firearms as being a coat belonging to her father, which she said she had not seen since her father died (at 71 -72). She also said that she had not seen her husband use the room or the built in wardrobe in it (at 71).

46 Robert Fortuna, in his evidence before the District Court said he had occupied the room previously but had not occupied it since ‘about 95’. He said that the in-built wardrobe was there when he moved into the room and before his father came to live at the property. He said he was not aware of the hidden cavity behind the mirror and the wardrobe had not changed since the time he had occupied the room (see Exhibit A3 – T15/11/06 at 33 to 36). Mr Fortuna gave similar evidence at his trial. However, he also said that he knew his father-in law, Mr Wagg, was a shooter and that prior to Mr Wagg coming to live on the property he would bring his guns with him when he came to go shooting on the property (see Exhibit A3 – T15/11/06 at 45). But he said he was unaware if Mr Wagg had brought his firearms with him when he came to live there.

47 At the trial there was also evidence about other previous occupants of Patrick’s room who may have secreted the firearms there.

48 In regard to the evidence of the hidden cavity in the built-in wardrobe and Mr Fortuna’s knowledge thereof, at page 7 to 9 of his decision the trial Judge said the following:

‘ ... [The] cavity itself is not one which is readily visible. The video tape of the search ran for not quite an hour and a great deal of it related to the search in bedroom 3. To obtain access to that cavity it was necessary for a police officer to open the door, walk into a wardrobe type room and then at the back of that part of the wardrobe to turn right and around the back of what was the mirror and drawers in the centre of that piece of furniture there was a space of 50 centimetres before a cache of weapons were standing. It is a some what difficult access into it and one which is not apparent on opening the door and one which in any event had in it a number of items, innocuous items which were stored there. I find, accepting the evidence as I do of Mr Fortuna, that not only did he have no knowledge but that he could not reasonably be expected to have known of the presence of the weapons there. I do that not only on his say-so but on the taking into account of the evidence of his wife, which I also accept, having seen nothing about the demeanour of either of the two of them that would cause me not to accept their evidence. She went to that wardrobe herself after her father died, he being one of the occupants I have mentioned, but she is a lady who unfortunately has a prosthetic leg and she was unable to get into the cupboard when she removed the item which was stored therein which had belonged to her father. I do not believe that she might have observed the weapons and imparted any knowledge of them to Mr Fortuna. Over the two years which have elapsed since her father died she has had no access to that wardrobe because I accept, as she said, that her son Patrick being a teenage boy does not want his mother looking through the items in his wardrobe. There has been no structural alteration in the premises since Mr Fortuna and his father came into occupation, that is no material alteration to the wardrobe. The cavity was not established by Mr Fortuna or any of his family.’

49 Leaving aside the DNA evidence, I am also satisfied that Mr Fortuna did not know and had no reason to know about the hidden cavity in the built-in wardrobe in Patrick’s room or the firearms that were contained within it. I would make a similar finding in regard to Patrick’s knowledge about the hidden cavity and the firearms secreted in it. On the whole I found Patrick to be a frank and truthful witness. His explanations about his move into his room, how he used his wardrobe to store his belongings, his use of firearms and interest in shooting competitively, in my opinion, were both plausible and unexceptional given his age at the relevant time.

50 In my opinion, Mr Fortuna also responded truthfully in regard to this particular factual issue. However, his responses I found to be more guarded when questioned about other factual issue as to his knowledge about the leasing arrangements for the ‘old dairy’ and what he knew about Mr Norman, Mr Jenkins and others he had authorised to live on his property. Why he was more guarded is unclear – it may have been due to a misconception that these proceedings were of a criminal nature.

51 The DNA evidence, in my opinion, is not sufficient to establish, on the balance of probabilities, that Patrick touched or used the 3 firearms that were secreted in his room. I do accept that if it were to be found that the DNA evidence established that Patrick had touched or used the firearms in question then the irrefutable inference is that he knew about the hidden cavity and the secreted firearms. This would then give rise to a further irrefutable inference that Mr Fortuna also knew about the hidden cavity and the secreted firearms. These findings would of course contradict their oral evidence.

52 Initially, the police had arranged for all the firearms to be tested for fingerprints and for DNA (see Exhibit R3 at Tab 40B and Certificate of Analysis by Virginia Friedman dated 30 May 2005 and 21 July 2005). Reference DNA samples were taken from Robert Fortuna, Mr Fortuna and Mr Norman. Mr Fortuna’s DNA or fingerprints were not found on any of the unregistered firearms, other than the shortened air rifle. It is not altogether clear from the report but it would appear that on the majority of the unregistered firearms no particular individuals DNA was found. However, Ms Friedman identified the DNA of a male, ‘Male A’, on 3 of the firearms in Patrick’s room and on the Boito .410 shotgun (registered in the name of Mr Fortuna) found in the gun safe.

53 Subsequently, the DNA of ‘Male A’ was matched with the DNA of Patrick (see certificate of analysis of Sharon Neville dated 14 February 2006 and 8 March 2006 at annexure DS-C of Exhibit R10). In the first analysis Ms Neville stated at (4) ‘Patrick William FORTUNA cannot be excluded as the source of the DNA profiles attributed to individual ‘A’. ...’

54 In her second analysis Ms Neville said at (4): ‘The partial DNA profiles recovered from items 11, 14, 17 and 20 could have originated from Patrick FORTUNA’ and she then went on to provide statistical information.

55 The DNA evidence was placed before the District Court in the criminal proceedings brought against Mr Fortuna. The trial Judge made the following findings at page 3 in regard to the DNA evidence:

‘... during the search police found in a cavity behind a built-in-wardrobe, in the bedroom which has been called bedroom 3 in these proceedings, twelve fire arms. Five of them were prohibited firearms. Patrick Fortuna, Mr Fortuna’s son, lived in that bedroom at the time. Mr Fortuna did not occupy that bedroom and never had. DNA testing was conducted on all twelve fire arms as was fingerprint testing and nothing was found identical with the accused DNA or fingerprints. DNA profiles were found in three places which are consistent with that of Patrick Fortuna, although it is obvious from the way the search is conducted that DNA could have been picked up by transfer from other objects, in particular Patrick Fortuna’s bedspread on which those weapons were placed in the course of the search. ..’

56 For the purposes of these proceedings, the respondent put into evidence a further certificate of analysis issued by Virginia Friedman (see Exhibit R12). In that certificate Ms Friedman states she had read the second report of Ms Neville and that she had reviewed the DNA testing conducted on the 4 firearms on which Patrick’s DNA was found. She concluded as follows:

‘In my opinion, the finding of DNA on these items is most likely as a result of an individual coming into physical contact with (i.e. handling) the items. The likelihood of DNA transferring to the firearms from an apparently clean, made up bed on which they have been placed, is very small. Other scenarios to account for this DNA are also possible.’

57 Each certificate of analysis is a certificate made pursuant to section 177 of the Evidence Act 1995, which merely provides a procedure whereby expert opinion evidence may be adduced in the form of a certificate, without the necessity of the expert being called.

58 Although the opinions expressed by Ms Neville and Ms Friedman in their respective certificates were not tested through cross-examination, I agree with the contentions of the applicants that the fact of Patrick’s DNA having been found on the 3 unregistered firearms is sufficient to establish, on the balance of probabilities, that Patrick had in fact touched the firearms. First, the opinion of Ms Friedman in this regard is equivocal and not conclusive. For example, she assumes that all 4 firearms were found in the wardrobe and transferred from ‘an apparently clean, made up bed.’, when only 3 were. The other, the Boito .410 shotgun, found to have Patrick’s DNA on it, was that found in Mr Fortuna’s gun safe. In his evidence Patrick acknowledged that he had used the Boito .410 shotgun and that he had used it under the supervision of his father and Mr Norman.

59 Secondly, Ms Friedman said that ‘other scenarios’ could account for the presence of Patrick’s DNA on these 4 firearms. What these other scenarios may be is not explained. Finally, Ms Friedman’s opinion is also based on the assumption of the firearms having been placed on a ‘clean’ made up bed. I assume this to have been the respondent’s instructions to her as there is no evidence of Patrick’s bed spread having been examined or tested for Patrick’s DNA. I also note that Ms Neville in her certificate makes no reference to having examined or tested the bed spread when she identified the DNA of ‘Male A’ as being the DNA of Patrick.

60 Furthermore, in the absence of any evidence of the firearms found in the hidden cavity having been recently used, the existence of Patrick’s DNA on the 3 firearms found behind the cupboard could equally be accounted for by one or more of the ‘other scenarios’ mentioned by Ms Friedman.

61 Also consistent with a finding that Mr Fortuna (and Patrick) did not know of the existence of the hidden cavity and the firearms secreted therein is the fact that, a few months prior to the search, Mr Fortuna had lawfully purchased a Boito .410 shotgun. Nor is there any evidence to indicate that Mr Fortuna was at any time a dealer of unregistered firearms. What the evidence shows is that Mr Fortuna registered all his firearms other than the air rifle and that he kept these in a properly secured gun safe. However, he was acutely aware that his father in law, Mr Wagg , Mr Norman and others who resided on his property owned and used firearms. His enquiry of these persons as to what firearms they had, whether they were registered and where they were stored while kept on his property was limited if at all. Yet he knew through his possession and use of firearms that if these persons had unregistered and improperly secured firearms on his property there was a serious risk to public safety.

62 The ammunition in Patrick’s room and the sunroom – During their search police found 22 rounds of ammunition in Patrick’s room on the top of a steel cabinet. It was found together with some firearm related equipment and literature. Ammunition was also found in the sun room where Mr Jenkins resided.

63 In regard to the ammunition found in Patrick’s room, Mr Fortuna’s evidence was that he had placed it there the evening before as Patrick was going to go shooting at the range the following afternoon when he finished school. As he would not be there when Patrick got home he told Patrick he would leave them on top of the cabinet. Patrick gave similar evidence and explained that he regularly went every, Wednesday, Saturday and Sunday to the local shooting range at Mogo – he said he regarded this to be his sporting interest and one in which he had done very well. His father and Mr Norman were also members of the same shooting range. I note that the day on which police executed the warrant was a Wednesday.

64 Mr Fortuna said he did not know how the ammunition had come to be in the sun room. He said he did not put it there and kept it in his gun safe. The respondent acknowledged that the safe met the safe storage requirements as set out in the Act. However, storage of the ammunition in this gun safe together with the firearms did not meet these requirements as the ammunition was not locked in a separate compartment. Mr Fortuna asserted that there were separate compartments but on viewing the video his counsel conceded that there was no separate compartment.

65 Paragraph 40(1)(d) of the Firearms Act requires firearm ammunition to be stored in a locked container of a type approved by the respondent and it must be ‘kept separate from the receptacle containing’ the firearm. On their own admissions Mr Fortuna and Patrick both breached this paragraph when the ammunition was left on top of the steel cabinet in Patrick’s room. Mr Fortuna also breached this paragraph by storing his ammunition in the same safe that contained his ammunition. It is unnecessary for me to make a finding in regard to the ammunition found in the sun room as even if it had been found in the safe it was stored contrary to the safe storage requirements of paragraph 40(1)(d).

66 The firearms found under the house – The 2 pistols and the silencer found in a bucket under the house were found not to have Mr Fortuna’s DNA on them. Mr Fortuna said Mr Fortuna said he did not go under the house as he suffered from claustrophobia. His wife gave similar evidence at his trial. She said she had never seen him go under the house or seen him with a pistol (Exhibit A3 – T15/11/06 at 67 and 69). As I have mentioned, the pistols were found behind a stack of unmortared bricks between the ground and the floor of the house. This was not the only area in which such bricks were found and there was no evidence to indicate that the bricks in front of the bucket containing the pistols had been moved. Accordingly, I make a similar finding to that made by the trial Judge that Mr Fortuna had no knowledge of and could not reasonably be expected to have known that the pistols and silencer were under the house.

67 The firearms found in Mr Norman’s car and the tin shed- It was Mr Fortuna’s evidence that he knew Mr Norman was the holder of a firearms licence and that he had firearms on the property. However he did not question Mr Norman any further when he told him he had his firearms stored in a gun safe. He said he did not at any time visit Mr Norman while he was living in the caravan and using the tin shed. The Tribunal understands that the respondent also revoked Mr Norman’s firearms licence. On what basis it was revoked is not known to the Tribunal. However, it is noted from the statement of Detective Senior Constable Clayton that the firearms in the tin shed were in a metal cabinet that was made up of 2 compartments and the door to each compartment was secured by a padlock which was cut to gain entry (see Exhibit R3 at tab 24). It is unclear whether this cabinet met the safe storage requirements of the Firearms Act. The schedule of firearms in the statements of Detective Sergeant Scott and Sergeant Hughes identify the firearms found in the tin shed as being unsecured. This they clearly were not, but whether they were secured in compliance with the Act is another question. In my opinion nothing turns on this. What is not disputed is that Mr Fortuna did not at any time endeavour to examine the cabinet when he knew that Mr Norman had firearms stored on his property.

68 Once again, there is no DNA or finger print evidence which links Mr Fortuna to the unsecured firearms (registered and not registered) found in the back of Mr Norman’s car. Accordingly, for the reasons already stated I find that Mr Fortuna had no actual knowledge of these.

The shortened and unregistered air rifle belonging to Mr Fortuna
69 In regard to the unregistered .177 air rifle cal. SLAVIA single shot air rifle, it was Mr Fortuna’s evidence that the rifle had been given to him by his grandfather. He said it was inoperative and he explained how it became inoperative. He said that he had kept it for sentimental reasons and did not at any time think he was required to register it. In regard to this air rifle Mr Fortuna was charged with possessing a firearm that had been shortened without being authorised contrary to clause 62 of the Fire Arms Regulations 1997. The trial Judge in his reasons for decision expressed some doubt as to whether the air rifle in its current state fell within the definition of a ‘firearm’ as set out in section 4 of the Firearms Act (see at page 11 of the judgment at Exhibit A3). However, he was not required to do so as he found on the evidence of Mr Fortuna that the air rifle had not been shortened, which was sufficient to dispose of this charge. Mr Fortuna gave the same evidence before the Tribunal and in my opinion the following reasoning of the trial judge at pages 14 to 15 in this regard is correct:

‘... [the] regulation prescribed the shortening of a weapon and then once the weapon has been shortened that a person should not be in possession of it, which is the part of the regulation on which the Crown relies. The Crown has not charged that Mr Fortuna shortened the weapon although even if that charge were to have been laid he would still be excused under the reasons I am about to give.

I accept the evidence of Mr Fortuna that the airgun became unserviceable when two pellets became jammed, one against the other, in the bore. He detected the point at which the jam occurred and he sawed through the barrel at the point to clear the jam and successfully ejected the jam pellets and then welded the barrel up again. He then used it once more to test it and although it worked somewhat it was unsatisfactory because, as I have mentioned, it would not, even if properly aimed it would not knock a tin can off a fencepost at 10 metres. He then did not use the airgun anymore. That is understandable because when one looks at the airgun it is a rudimentary and ancient object. He had left standing up in a position where it was knocked over by one of his dogs and when it fell over his amateur welding came apart and he made no attempt to rectify the repair. An examination of the airgun itself corroborates that as the weld can still be seen and there is brightness, around where the welder has broken, of a different nature of the cut through the barrel.

This is a criminal statute and must be construed strictly in accordance with its normal meaning. It describes the shortening of a firearm and position of a firearm that has been shortened. This firearm was not shortened. On the contrary what Mr Fortuna did was to cut through the barrel and repair it and restore it to its original length. That was all that he intended to do. True it is that his repair did not stand the test of being knocked over by his dog but that was not a shortening done by him, it was a failure of a repair which he conducted to ensure that the barrel remained at its original length. The fact that he has not, once again either by himself or by an expert, had the barrel welded up does not alter what happened in the first place, namely that he did not shorten the fire arm, he simply repaired it thus it was not a firearm that had been shortened and the object of which he was in possession was not possession of a firearm that had been shortened.’

70 It appears to have been conceded that nevertheless the rifle had to be registered if Mr Fortuna sought to retain possession of it. Furthermore, it was Mr Fortuna’s evidence that he would have registered it had he known this. In his submissions Mr Lynch suggested that the air rifle was not secured in Mr Fortuna’s gun safe. However, the evidence filed at the trial and the schedules of the firearms seized state that it was secured in the safe (see Exhibit 3 at Tab 33 paragraph [12]).

Knowledge of Mr Fortuna in regard to the ‘cannabis plantation’ in the ‘old dairy’
71 In regard to the ‘old dairy’ it was Mr Fortuna’s evidence that this had been leased by his wife (now ex-wife) to someone he thought lived in Wagga. He said he did not get involved in the leasing arrangements and he did not at any time go to the ‘old dairy’ and inspect it. The ‘old dairy’ was some distance from the main house and it was Mr Fortuna’s evidence and that of Patrick that at no time did they know the dairy was being used for the purpose of growing cannabis, nor did they have any reason to know about the plantation.

72 The police fingerprint and DNA testing does not link Mr Fortuna or Patrick to this building or what was contained within it.

73 I accept Patrick’s evidence that he did not know and had no reason to know that the dairy was being used to grow cannabis. He was 15 years of age and did not have any real responsibilities in regard to the running of the property as he was still at school.

74 I also find on the evidence that Mr Fortuna did not have any actual knowledge of the cannabis plantation in the ‘old dairy’. However, it is more difficult to accept his evidence that he had no reason to know that the premises were being used for an unlawful purpose. The dairy, unlike the hidden cavity in the built-in wardrobe, was at all times visible and accessible had Mr Fortuna, as owner of the property, wished to gain access. Instead, he seems to have taken a very cavalier attitude about what people do on his property and what use they make of the premises on his property in which they reside. Had I received evidence from his wife about the leasing arrangement and what she had told Mr Fortuna I may have formed a different view, but without the benefit of this evidence and Mr Fortuna’s apparent reluctance when giving his evidence about the ‘old diary’ I can only infer that he had reason to know that the ‘old dairy’ may have been used for an unlawful purpose.

The involvement of Mr Fortuna and Patrick in the Rebels Outlaw Motorcycle Gang
75 Mr Fortuna said he joined Rebels MC Bateman Bay Inc (‘the Rebels’) in 1995. He joined as a life member and was subsequently appointed as secretary of the chapter. He said he joined because he had friends who were members. He described it as a social club where members met together at the local clubhouse. He agreed members could attend the clubhouse as of right and non members could attend only by invitation by a member.

76 It was Mr Fortuna’s evidence that he resigned from the club in mid 2008.

77 In July 2007, Mr Fortuna was charged with 2 offences under the Liquor Act 1982. He explained that the offences occurred during a party arranged at the Rebels club house. He said the club provided the alcohol and decided that members should make a contribution to the club for such drinks. He said he did not appreciate that the club was required to be licensed to do this, but did not dispute that he was the person caught serving the drinks and taking money for it. Mr Fortuna pleaded guilty to the charges and was convicted and fined $500 on each charge, in December 2007.

78 Mr Fortuna did not otherwise elaborate on his association with the Rebels.

79 In his statement Detective Sergeant Scott described sets out the reasons why he believes the Rebels is an Outlaw Motorcycle Gang (see Exhibit R1 at [41] and Exhibit R4). He said these Gangs readily label themselves as ‘outlaws’ so as to distinct themselves from legitimate social motorcycle clubs. He said they wear a badge with ‘1%’ on it. This badge he said was a reflection of a statement made by a former president of the American Motorcycle Association in the 1940’s that ‘99% of the motorcycling public are honest, law abiding citizens, only 1% are troublemakers.’ It was also the contention of the respondent that once a member of such a gang, membership is for life and one cannot resign or relinquish that membership. Detective Sergeant Scott said that a 1% badge was found in Mr Fortuna’s wallet on 17 November 2007 (see Exhibit R1). This was not denied by Mr Fortuna but he was adamant that he had resigned and was no longer involved.
80 Detective Sergeant Scott also made reference to various reports or information he had received about Mr Fortuna’s involvement in the Rebels. In the absence of Detective Sergeant being available for cross-examination and Mr Fortuna denying the essence of these, I am unable to place any substantial weight on this evidence. Nor did the evidence of Sergeant Hughes assist.

81 Nor do I find the generalisations about the Motor Cycle Gang to be of assistance. While they may in themselves be correct they do not in this application demonstrate that Mr Fortuna falls into the 1% of trouble makers. In light of Mr Fortuna’s uncontradicted evidence about having resigned from the Rebels last year I cannot accept the respondent’s contention that he has not and cannot resign.

82 In regard to Patrick’s association with the Rebels, the respondent relies on a COPS entry, made by Detective Sergeant Scott on 18 September 2008 (see Exhibit R 4 and R14). This entry was made by Detective Sergeant Scott after Patrick had lodged his application for a firearms licence and after he had lodged his application for review by the Tribunal. The entry also merely states that ‘information’ had been received that Patrick was a nominee for the Batemans Bay chapter. What that information was and from whom it had been received is not identified. Accordingly in the absence of this evidence and the availability of Detective Sergeant Scott, very little weight can be placed on this material. Furthermore, the uncontradicted evidence of Patrick was that he has never sought nomination as a member of the Rebels nor does he wish to be one.

Patrick and the alleged assault and theft
83 In his evidence Patrick acknowledged that on the evening of 22 September 2006 he hit a Mr Bassett. He said that while he was at his mother’s home that evening he had received a telephone call from his brother to say that he had been threatened by Mr Bassett. Patrick said that later that evening, when he was in a car with 3 friends, he saw Mr Bassett walking along the road. They stopped the car and Patrick and one of his friends walked over towards Mr Bassett and Patrick told him to leave his brother alone. Patrick said Mr Bassett appeared to be drunk and drug effected and that Mr Bassett began to threaten him. Patrick’s response was to punch Mr Bassett in the face. He said Mr Bassett fell down and that he and his friend went back into the car. They were spoken to by police some time later that evening. The police had been informed by a neighbour of Patrick’s mother that he/she had overheard one of Patrick’s friends say they had hit Mr Bassett and stolen his wallet and mobile phone. Patrick denied he had taken the wallet or the mobile phone, but did not deny he had delivered a punch. It is noted from the COPS entry that the friend who had approached Mr Bassett with Patrick admitted that he had made the overheard phone call. No charges were laid as Mr Bassett withdrew his complaint the following day.

84 At the hearing Patrick acknowledged that he was wrong in approaching Mr Bassett and said he would not respond in the same way in future. Instead he would walk away.

Consideration of fitness and propriety of Mr Fortuna and Patrick: paragraph 11(3)(a)
85 It is not disputed that in considering the fitness and propriety of an applicant for a license regard must be had to the licensed activities in which the person is or will be engaged. The assessment of the person’s fitness and propriety must also be assessed as at the time of the hearing, having regard to all the relevant material before it s: see Australian Broadcasting Commission v Bond (1990) 170 CLR 231. In these applications the activities in which Mr Fortuna and Patrick will engage in is the possession and use of firearm. In section 3(1) of the Firearms Act, Parliament has set out the underlying principles of this regulated activity; namely firearm possession and use is a privilege and conditional on the overriding need to ensure public safety. This principle is reflected in paragraph 11(3)(a) of the Act in that the Tribunal (as was the Commissioner) must be satisfied that Mr Fortuna and Patrick can be trusted to have possession of firearms without danger to public safety or to the peace.

86 In Ward v The Commissioner of Police, New South Wales Police Service [2000] 28 at [27], Deputy President Hennessy said in regard to paragraph 11(3)(a) of the Firearms Act, that ‘the question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.’ She went on to say at [28] that the Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.’ The decision for review in that application was a decision to revoke Mr Ward’s firearms licence as a result of a conviction for an assault. It was a recent conviction and notwithstanding this Deputy President Hennessy found that Mr Ward was a fit and proper person to hold a gun licence and could be trusted to have possession of firearms without danger to public safety in accordance with paragraph 11(3)(a). In doing so Deputy President Hennessy had regard to steps taken by Mr Ward in the 8 months since his conviction to rehabilitate himself and evidence from Mr Ward’s counsellor.

87 With the exception of having an air rifle that was unregistered and having failed to store his ammunition safely and securely in accordance with the Firearms Act, there is no evidence that Mr Fortuna in the time he was the holder of a firearms licence possessed or used his firearms in a manner that posed a danger to public safety or the peace. I agree with the respondent that these breaches of the Firearms Act are serious. However, I note that the gun safe used by Mr Fortuna was approved by a representative of the respondent. That safe has 2 compartments, one for the firearms and one for ammunition. It is not compliant with the requirements because they are not separately locked so as to form 2 separate receptacles. Leaving the ammunition in Patrick’s room was clearly a breach that placed public safety at risk, which has been acknowledged by Mr Fortuna in the course of these proceedings. It is a breach that occurred 5 years ago and I am satisfied that Mr Fortuna is now fully aware of what he is required to do to ensure that his firearms and his ammunition are correctly stored. He is also aware of the need to have registered all his firearms after the Firearms Act came into force, even those that did not work. The evidence is that he otherwise registered all his firearms and has purchased only firearms that are registered.

88 In my opinion, Mr Fortuna’s criminal conviction cannot be given much weight. While it was an acknowledged breach of the law, it was not a breach that had any relationship to the activity for which he now seeks a licence. Furthermore it occurred more than 2 years ago and in circumstances where he was a member of the Rebels, which he no longer is. Nor, in my opinion, does the evidence otherwise establish that Mr Fortuna personally has a ‘flagrant’ disregard for the law and could not be trusted.

89 Despite my findings I do not propose to make any conclusive findings about Mr Fortuna’s fitness and propriety for the purposes of paragraph 11(3)(a) as I have found that in the circumstances, when considered as a whole, the issuing of a firearms licence to Mr Fortuna at this time would be contrary to the public interest.

90 In regard to Patrick, I am satisfied from the evidence that he is a fit and proper person to be the holder of a firearms licence and, subject to providing details as to where and how his firearms were to be stored, could be trusted to have possession of firearms without danger to the public. Other than requesting that ammunition be left in his room for the following day, there is no evidence that Patrick breached the provisions of the Firearms Act while he was the holder of a minor’s permit. He made his request some 5 years ago and the respondent seems to have accepted that responsibility for the breach of the safe storage requirements rested with Mr Fortuna and not Patrick. Yet Patrick in his evidence acknowledged that leaving ammunition unsecured in this way did pose a risk to public safety. He also recognised his responsibilities if he was to be issued with a licence but his father was not. My only reservation is in regard to where and in what receptacle Patrick proposes to store his firearms. This was not raised during the hearing and it is appropriate that Patrick provide this information, to the satisfaction of the respondent, before a licence is issued.

91 In making this finding I have had regard to the allegations that have been made against him. As I have said he readily acknowledged that he punched Mr Bassett – he did so from the time the police questioned him. He has acknowledged it was wrong and he has not come to the notice of the respondent in the 3 years since it happened. Patrick was the holder of a minor’s permit for 2 years and as I have said did not come to the notice of the respondent in regard to his use of firearms. Mr Bryson Payne, President of the Batemans Bay Sporting Shooters Association, in his statement also said that Patrick was a trustworthy and careful user of firearms. In my opinion, these proceedings have also demonstrated to him the consequences of failing to meet the safe storage requirements of the Firearms Act.

Consideration Mr Fortuna’s capacity to meet the storage and safety requirements for firearms: paragraph 11(3)(c)
92 For the reasons set out above I am satisfied that Mr Fortuna has demonstrated that he has the capacity to meet the storage and safety requirement of sections 39 and 40 of the Firearms Act in regard to his own firearms.

Consideration of whether issuing a licence to Mr Fortuna or Patrick would be contrary to the public interest: subsection 11(7)
93 It is now well accepted that the concept of ‘public interest’ in subsection 11(7) of the Firearms Act ‘is an inherently broad concept’ giving the Tribunal (and the respondent) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual: see Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. It is also well accepted that the concept must be considered in the context of the section 3 principles and objectives of the Firearms Act.

94 In my opinion, for the purposes of these applications the issue in regard to ‘public interest’ is whether, by reason of the broader conduct of Mr Fortuna and Patrick, ‘there has been, or is, a possibility of a threat to the public's safety’ and if there has been then the public's right to safety must outweigh their respective individual privilege to possess and use a firearm: see Aubrey v Commissioner of Police, New South Wales Police [2005] NSWADT 266 at [21] .

95 It is of great concern that such a large number of unregistered, prohibited and unsecured firearms were found on Mr Fortuna’s property. That their presence on the property (supposedly for some time) posed a real and substantial threat to public safety is not questioned. While I have found that Mr Fortuna did not have any actual knowledge of their presence in the places where they were found on his property, I note that he gave evidence as to whom they may belong, including his father in law, Mr Wagg. Each person he identified was a person known to him and someone he had invited to be on his property. Furthermore he knew that some these persons owned or had owned firearms and yet other than in the case of Mr Norman there is no evidence of him having made any inquiries of them as to whether they had brought firearms onto his property and where they were being stored. I was left with the impression that he believed that this was not a matter for him. He appeared to have the same attitude towards what was happening at the ‘old dairy’. In my opinion, as owner of the property, being fully aware of the risk to public safety if firearms were brought onto his property and not securely stored, he had a responsibility to make some inquiries of his guests and ensure that the responses he received were correct. This he did not do. While it is not possible to conclude that it was as a result of his failure to ask these questions that public safety was placed at risk, his failure cannot be excluded as a possible cause.

96 That Mr Fortuna did not ask these questions is also consistent with his evidence in regard to what the ‘old dairy’ was being used for. Again his conduct arguably placed public safety at risk.

97 It is for this reason that I find that the issue of a licence to Mr Fortuna at this time would be contrary to the public interest.

98 Similar concerns do not arise in regard to Patrick. However, if he were to become the owner of the property then he would have the same responsibilities placed on him.

Conclusions
99 For the reasons set out above I find that the decision of the respondent to refuse Mr Fortuna’s firearms licence is the correct and preferred decision and should be affirmed.

100 For the reasons set out above I find that the decision of the respondent to refuse Patrick’s firearms licence is not the correct and preferred decision and should be set aside and remitted pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997 for consideration in accordance with paragraph [90] above.