Masterson v Commissioner of Police

By summons filed on 15 November 2017, Tristan Masterson (the plaintiff) seeks leave to appeal against the decision of the Appeal Panel (the Appeal Panel Decision) of the Civil and Administrative Tribunal (the Tribunal) made on 31 October 2017: Masterson v Commissioner of Police [2017] NSWCATAP 206.

This Court’s jurisdiction arises from s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) which relevantly provides:

The uncontroverted factual background can be shortly summarised.

On 12 December 2011 a licence pursuant to the Firearms Act 1996 (NSW) (the Act) was issued to the plaintiff (the Licence). The Licence was to expire on 3 February 2017.

In July 2012 a search warrant was executed on the plaintiff’s premises. He was subsequently charged with the following offences:

On 26 July 2012 the plaintiff’s Licence was suspended by the Commissioner. On 14 November 2013, the Penrith Local Court convicted the plaintiff of the Receiver Charge and the Magazine Charge, and dismissed the Vektor Rifle Charge. On 26 June 2014, the Parramatta District Court quashed the convictions on the Receiver and Magazine Charges.

On 10 July 2014, the Commissioner of Police (the defendant, or the Commissioner) revoked the Licence, having regard to the plaintiffs conduct in connection with the 2012 Charges and other matters (the Original Decision). The Original Decision, which was made on 10 July 2014, was affirmed by way of internal review on 18 November 2014 (the Internal Review Decision).

The plaintiff applied to the Tribunal for administrative review of the Internal Review Decision. The documentary material relied on by each party, which included witness statements, was filed in the Tribunal. When the hearing commenced before Senior Member Scahill on 14 July 2016, the two parties tendered the evidence on which they relied. There was cross-examination of witnesses. The hearing was adjourned part-heard to 23 September 2016 and concluded on that day. The Senior Member reserved her decision.

The central issues for the Tribunal’s consideration turned on the characterisation of particular items which were found during the execution of the search warrant at the plaintiff’s premises and whether the possession or use of those items constituted, on the balance of probabilities, a contravention of either the Act or the Weapons Prohibition Act.

On 11 January 2017, the Tribunal (Senior Member Scahill) affirmed the Commissioner's decision to revoke the Licence (the First Tribunal Decision): Masterson v Commissioner of Police [2017] NSWCATAD 17.

The Senior Member found that the plaintiff’s licence ought be revoked on the basis of the following:

As referred to above the Appeal Panel dismissed the plaintiff’s appeal from the First NCAT Decision on 31 October 2017. It upheld the Stock Finding and the Magazine Finding but rejected the 3-D Finding. It confirmed the revocation of the plaintiff’s Licence.

Section 7(1) of the Act prohibits the possession and use of a prohibited firearm unless the person is authorised to do so by licence or permit. Section 4 defines “prohibited firearm” by reference to Sch 1 of the Act, which includes, relevantly, in cl 11:

The relevance of whether a stock can operate on a telescopic basis is that a telescopic stock can be more readily concealed as it has the effect of reducing the apparent size of the firearm.

Section 4(1) defines “firearm” and “firearm part” broadly, as follows:

Section 4(2) also, relevantly, provides:

Section 8 of the Act provides for specified categories of licence, the firearms to which they apply and the authority which they confer. The plaintiff’s Licence was for categories A and B, which relevantly provided:

Section 24(2) of the Act relevantly provides that:

Clause 19 of the Firearms Regulation 2006 (NSW) relevantly provided, at the time of the Original Decision and the First NCAT Decision as follows:

In order to ascertain the meaning of the “public interest” in the context of cl 19, it is necessary to consider the Act as a whole, including s 3. Section 3 relevantly provides:

The Act contains several controls on the possession and use of firearms and sanctions, including criminal sanctions for breach of its provisions. Section 11, which provides for the grant of licences, relevantly provides:

The power conferred on the Commissioner by s 24 to revoke licences granted under the Act is also broad, as the extract from s 24(2) set out above, illustrates.

In Kocic v Commissioner of Police NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368, Basten JA, at [1], referred to “the significant emphasis . . . placed [by the Act] upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant.”

The public interest in the context of firearms legislation (the Act and the Weapons Prohibition Act) requires that those who are licensed to possess and use firearms be strictly vetted. The capacity of firearms to kill and cause grievous bodily harm makes control of their manufacture, possession and use essential in any civilised society. The system of licensing provided for by the Act is an important aspect of the legislative controls on the use, possession and manufacture of firearms.

Section 7(1) of the Weapons Prohibition Act provides that a person must not possess or use a prohibited weapon unless the person is authorised to do so by permit. Section 4 of the Weapons Prohibition Act defines “prohibited weapon” by reference to Sch 1. Of present relevance, cl 4(4)(c) of Sch 1 includes in the list of prohibited weapons a detachable centre-fire firearm magazine with a capacity of more than 10 rounds.

The Tribunal’s jurisdiction to review the Internal Review Decision was derived from s 75(1)(c) of the Act and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 75 of the Act relevantly provides:

Section 9 of the ADR Act relevantly provides:

Division 3 of Part 3 of the ADR Act relevantly provides that, in determining an application for an administrative review (under the ADR Act) of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to relevant factual material and the applicable law: s 63(1). For that purpose the Tribunal is entitled to exercise all of the functions conferred by legislation on the administrator who made the decision under review: s 63(2). In determining such an application, the Tribunal may decide to affirm, vary or set aside the decision and, if the last-mentioned, the Tribunal may either make a decision in substitution or remit the matter for reconsideration by the administrator: s 63(3).

Section 66 of the ADR Act provides that the Tribunal’s decision determining such an application takes effect on the date on which it is given or such later date as may be specified in the decision and that if any such decision varies or is made in substitution for, an administrator’s decision, the decision of the Tribunal is taken to be the decision of the administrator (other than for the purposes of an administrative review under this Act), and to have had effect as the decision of the administrator on and from the date of the administrator’s actual decision, unless the Tribunal orders otherwise.

The plaintiff seeks leave to appeal against the Appeal Panel Decision on eight grounds, which are summarised as follows;

These grounds will be considered in turn.

The plaintiff submitted, pursuant to the first ground, that the Original Decision and the Internal Review Decision were made in bad faith; were affected by bias; and improperly took into account evidence obtained from telephone intercepts procured by warrant.

The difficulty with this ground is that it depends upon the Original Decision and the Internal Review Decision being operative decisions. An analogous question arose in Valuer-General of New South Wales v Oriental Bar Pty Ltd [2016] NSWCA 48. Basten JA said, of the nature of the appeal to the Land and Environment Court from the determination of the Valuer-General, at [32]

The plaintiff’s initial application to the Tribunal for review of the Internal Review Decision invoked the Tribunal’s jurisdiction under s 75(1)(c) of the Act and s 9 of the ADR Act. Once the Tribunal had determined the plaintiff’s application for review of the Internal Review Decision, it was the Tribunal’s decision affirming that Internal Review Decision under s 63(3) of the ADR Act, which became the operative decision. Similarly, when the plaintiff appealed to the Appeal Panel for review of the First Tribunal Decision and the Appeal Panel made the Appeal Panel Decision, the operative decision became the Appeal Panel Decision, which was to refuse leave and confirm the First Tribunal Decision. Nice questions may arise when the right of appeal is limited to, for example, a question of law. In these circumstances, it is possible that the earlier decision can still be challenged, notwithstanding that an application for review has been determined: see the discussion in Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [82]-[100] (Sackville AJA, Leeming JA and Adamson J agreeing). However, in the present case, no such questions arise as the Tribunal’s First Tribunal Decision was not relevantly limited.

Accordingly, the first ground is not competent since it seeks to challenge the Original Decision and the Internal Review Decision, which are no longer operative.

The plaintiff submitted, with respect to ground 2 of the summons, that the Commissioner tendered in evidence before the Tribunal “hearsay communications material” which was said to be in breach of s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act). The documents which were said to contain such material were as follows:

The plaintiff relied on the TIA Act, which prohibited the use of interception information. It was common ground that the Tainted Material constituted interception information and could not be tendered in the proceedings before the Tribunal. I understand that the Tainted Material revealed the contents of recorded telephone conversations between the plaintiff and Paul Francis, whose telephone service was the subject of the telephone interception warrant.

It is not necessary to set out in detail what occurred in the hearing before Senior Member Scahill. For present purposes, it is sufficient to note that the Commissioner accepted that the Tainted Material had been filed with the Tribunal. At the commencement of the hearing before the Senior Member, the Commissioner confirmed that no reliance was placed on the Tainted Material. Mr Mattson, who appeared for the Commissioner in the Tribunal, handed up redacted versions of the Facts Sheet, Detective Ferris’ statement and the written submissions, from which the Tainted Material had been removed. The Tribunal noted the Commissioner’s confirmation and informed the parties that the material (which I have defined as Tainted Material) would not be taken into consideration. The plaintiff’s counsel, Mr Ramage, acknowledged the Tribunal’s statement by thanking the Senior Member.

The Appeal Panel addressed the plaintiff’s argument (which was made in similar terms before it). It found, at [127] that: “No evidence was identified to suggest, let alone establish, that the Tribunal in any way considered, had regard to or was influenced by the inadmissible material.”

The plaintiff submitted, in this Court, that the Senior Member indicated, at the outset of the hearing, that she had read the filed material. As referred to above, the filed material included the Tainted Material. The plaintiff contended that it followed that the Senior Member had read the Tainted Material, which was not relied upon. As I understood the plaintiff’s submission, it was that the mind of the Senior Member must have been infected by the Tainted Material and, accordingly, the First Tribunal Decision ought be set aside, either because there was a reasonable apprehension of bias, or because it was illegal for the Tainted Material to be taken into account.

I reject the plaintiff’s submissions. First, for the reasons given above, the First Tribunal Decision is no longer operative and therefore cannot be challenged, except through the decision of the Appeal Panel. Secondly, in any event, the course adopted before Senior Member Scahill was acceded to by Mr Ramage on behalf of the plaintiff. The plaintiff can, in these circumstances, be taken to be bound by the conduct of his counsel: R v Birks (1990) 19 NSWLR 677 at 683-685 (Gleeson CJ, McInerney J agreeing). Had objection been taken to the possibility that the Senior Member’s mind would have been irrevocably tainted by the Tainted Material, an application could have been made for her to recuse herself and for another member to be allocated to determine the matter. However, this course was not taken. Mr Ramage accepted both the Commissioner’s concession that the Tainted Material would not be relied upon and the Senior Member’s assurance that it would play no part in her decision.

Thirdly, as the Appeal Panel found (at [127]), there was no indication in Senior Member Scahill’s reasons that she had acted in any way contrary to her confirmation. Although she referred to the fact that a person’s (not the plaintiff’s) telephone service had been intercepted, this was by way of background. No reference was made to the content of any intercepted calls. The plaintiff bears the onus of establishing that there was an error: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67]-[70] (Gummow J). He has failed to discharge the onus.

I note for completeness that the plaintiff raised a further matter in his oral submissions which, though separate from, is at least tangentially related to, count 2. He contended that the Senior Member had erred in allowing evidence of Mr Francis’ criminal record and facts sheets concerning offences alleged to have been committed by Mr Francis. I accept the submission made by Mr El-Hage, who appeared on behalf of the Commissioner, that this argument cannot result in a question of law for this Court as the Tribunal accepted the submission made on behalf of the plaintiff that the plaintiff’s association with Mr Francis did not count against him. Ultimately, the Tribunal found at [249]:

As the plaintiff was successful on this point before the Tribunal, it was not a matter which arose for the Appeal Panel’s consideration.

In ground 3, the plaintiff seeks to challenge the Tribunal’s Stock Finding (that the Vektor Rifle had a stock specifically designed to be telescopic, which made it a prohibited firearm in the plaintiff’s possession).

The Senior Member found, at [225] of the First Tribunal Decision, that the stock was not readily detachable from the firearm and that it did not meet one aspect of the definition in cl 11 of Sch 1 (see above). However, the Senior Member made the Stock Finding, which had the effect of making it a prohibited firearm within cl 11 of Sch 1 of the Act. The Tribunal’s conclusion that the stock was a prohibited weapon was based, in part, on the evidence of Detective Ferris that, at the time the search warrant was executed, the stock could be moved forward and backwards when a pin was loosened. Detective Ferris was cross-examined on this evidence. The Senior Member ultimately accepted his evidence (see First Tribunal Decision [227]). Senior Member Scahill found that Detective Ferris’ evidence was consistent with Mr Wilson's certificate of August 2012, when he examined the rifle: The First Tribunal Decision [226]-[227]).

Although the finding was based on the evidence of Detective Ferris and Mr Wilson (the expert called by the Commissioner), it was amply supported by admissions made by the plaintiff. The plaintiff admitted that the stock had been designed to be telescopic but said that he had taken steps to alter it such that it was no longer telescopic. The Tribunal referred to this alteration in its reasons at [261] as follows:

Further, the Senior Member said, at [265]:

The Appeal Panel accepted (Appeal Panel Decision [86]-[88]), that when it was seized on 4 July 2012, the stock on the Vektor Rifle was designed, and was able, to be telescopic. Thus, the Appeal Panel found that the Vector Rifle, fitted with such a stock, was a prohibited firearm within cl 11 of Sch 1 to the Act. Its reasons were as follows:

The plaintiff’s written submissions in support of the third ground are, in effect, a series of complaints about the weight given by the Senior Member (and the Appeal Panel) to the evidence adduced by the Commissioner. Such complaints do not give rise to a question of law. In his oral submissions, the plaintiff argued that the emphasis in cl 11 of Sch 1 was on the present tense. He argued that, although the stock was designed to be telescopic, it could not be said, at the time of its seizure, that the stock is designed to be telescopic because he had altered that design feature. He submitted orally:

The question whether the stock fell within the definition in cl 11 was a question of fact or, at best, a question of mixed law and fact. It was, in my view, open to the Appeal Panel to leave undisturbed the Senior Member’s Stock Finding. No question of law arises.

This ground does not appear to add anything to either ground 3 or to grounds 5 and 6, which will be considered below.

Senior Member Cahill made the following findings which are germane to grounds 5 and 6:

The reasons for (1) were set out in the following paragraphs from the First Tribunal Decision:

The Appeal Panel found that the Senior Member was in error in finding (1). It considered that the Act did not prohibit the plaintiff from attempting to make those firearms parts for his firearms. The Appeal Panel’s ultimate finding on the question was expressed as follows in [117] of the Appeal Panel Decision:

It is not necessary to express any view on the correctness, or otherwise, of the Appeal Panel’s finding of error since it does not arise on the appeal. I note that the Commissioner sought to challenge this finding in the event that I were otherwise satisfied that the Appeal Panel Decision ought be set aside for error of law. Because of the view to which I have come, it is not necessary to address this matter further.

I turn to the Senior Member’s finding in (2) above, which was upheld by the Appeal Panel, as is evident from the following passage from its reasons:

The plaintiff in this Court sought to challenge finding (2) by the Appeal Panel. His challenge relied, at least in part, on allegations of misconduct by the police and the Commissioner’s solicitor. None of the allegations was substantiated. However, the findings of the Tribunal and the Appeal Panel on this question were based on admissions made by the plaintiff in the course of the execution of the search warrant on his premises on 4 July 2012. Thus the basis for the Tribunal’s and Appeal Panel’s findings could not rationally be affected by any irregularity or illegality in the evidence adduced on behalf of the Commissioner, there being no basis to suggest that either the search warrant or its execution was other than legal.

The plaintiff has failed to make out either ground 5 or ground 6.

The plaintiff submitted, in support of ground 7, that the Appeal Panel was “unreasonable in invoking the public interest test”. He submitted that, even if the findings against him were taken at their highest, “it [his conduct reflected in the findings] would have no effect on the public interest”.

The so-called “public interest” test is contained within cl 19 of the Firearms Regulation. The Commissioner was obliged to apply it, as was the Senior Member, who stood in the shoes of the original decision maker. As the Appeal Panel had set aside some of the findings of the Senior Member (referred to above) it, too, was obliged to consider, in light of its own findings, whether to confirm, vary or set aside the decision of the Senior Member to confirm the Commissioner’s decision to revoke the plaintiff’s Licence.

The question whether the plaintiff’s Licence ought be revoked involved a broad evaluative judgment by the Appeal Panel (and the Senior Member), which included considerations of the public interest. The matters to be considered under the rubric of the public interest included the willingness of putative licence holders to abide by firearms legislation as well as any history of compliance or non-compliance.

The plaintiff has not identified any error in the process by which the Appeal Panel undertook that evaluation. Nor has the plaintiff established that the result is so irrational as to demonstrate error.

The plaintiff, in support of the eighth ground, has made several unsubstantiated allegations against the Commissioner and his agents. These allegations ought not have been made. In some respects the allegations reveal the plaintiff’s lack of familiarity with the preparation of witness statements. He accused Mr Mattson, the solicitor acting for the Commissioner, of misconduct when all the evidence showed was that Mr Mattson had drafted the statement of Detective Ferris, in accordance with instructions given by him. It is entirely orthodox for solicitors to draft or assist in drafting witness statements. Indeed, it is often preferable that solicitors do so in order to avoid inadmissible or prejudicial material being included.

I do not propose to address the plaintiff’s in any detail since the plaintiff has not established that, even if any one of the allegations he has made had any substance, the findings of the Appeal Panel would have been different. For example, the plaintiff alleged that two pieces of a magazine found at his premises had been glued together by police and that this amounted to “tampering” with the evidence. It was common ground that the two pieces were separate when they were found when the search warrant was executed. At [165]-[172] of the First Tribunal Decision, the Senior Member found that, in that state, the two pieces could not amount to a magazine and that, accordingly, the plaintiff was not, on this basis, in possession of a prohibited weapon in contravention of the Weapons Prohibition Act.

For the reasons given above, the findings made against the plaintiff were largely based on uncontroverted facts or admissions made by him during the execution of the search warrant, which was filmed and sound-recorded. The video of the execution of the search warrant was before the Tribunal and the Appeal Panel. This ground does not, in any event, raise a question of law.

None of the grounds has been made out. It is doubtful whether any raises a question of law. In these circumstances, I do not consider a grant of leave to be warranted.

Accordingly, it is not necessary to address the notice of contention filed by the Commissioner or to consider whether such a document is appropriate in a case such as the present.

The Commissioner accepted that costs ought follow the event. The plaintiff ultimately submitted that if he was successful, he ought obtain an order for costs (although he accepted that he had acted for himself). However the plaintiff submitted that, if the Commissioner was successful, he ought not be ordered to pay the Commissioner’s costs of the proceedings. The plaintiff relied on the alleged misconduct by the Commissioner’s representatives and agents. The allegations made by the plaintiff against the Commissioner have not been substantiated. I am unpersuaded that there is any reason to depart from the general rule that costs follow the event.

For the reasons set out above, I make the following orders: